The Commerce Department's new practice related to questionnaire response extensions supports exporter Tau-Ken Temir's claims against the agency's use of adverse facts available due to missed filing deadlines, TKT told the U.S. Court of Appeals for the Federal Circuit in a notice of supplemental authority (Tau-Ken Temir v. United States, Fed. Cir. # 22-2204).
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit denied customs broker license exam test taker Byungmin Chae's combined petition for panel rehearing and rehearing en banc of the appellate court's opinion landing him just one question short of passing the exam taken in April 2018. The court said Chae's petition was referred to the panel that heard the case, comprising Judges Pauline Newman, Sharon Prost and Kimberly Hughes, and was then circulated to all the judges in regular active service. A month prior, the court rejected duplicates of Chae's petition seemingly filed in error.
The U.S. has yet to appear in a case at the U.S. Court of Appeals for the Federal Circuit on the 2019-20 antidumping duty administrative review on aluminum wire and cable from China brought by importer Repwire and exporter Jin Tiong Electrical Materials Manufacturer. The appeal concerns a Court of International Trade decision upholding the Commerce Department's withdrawal of a separate-rate questionnaire it erroneously issued to Jin Tiong (see 2303200039). In a text-only notice to the U.S., the Federal Circuit said that the government has failed to file an entry of appearance, which could lead to dismissal "or other action as deemed appropriate by the court" (Repwire v. U.S., Fed. Cir. # 23-1933).
Trailer wheels manufactured by Asia Wheel in Thailand were incorrectly ruled to be within the scope of antidumping and countervailing duty orders on certain steel wheels from China, U.S. importers Trailstar and TexTrail said in a pair of June 9 complaints at the Court of International Trade. Both complaints asked the court to find Commerce's final scope ruling illegal and to remand the ruling to the department (Trailstar v. U.S., CIT # 23-00097, and Textrail v. U.S., CIT # 23-00099).
Federal Circuit judges cautioned counsel for importer Katana Racing against arguing whether the U.S. actually stated a claim for which relief can be granted, despite the fact that the Court of International Trade dismissed the case due to an expired statute of limitations. During the June 7 oral argument in the customs penalty suit, Judge Alvin Schall pointed out that the CIT judge did not decide the failure to state a claim issue, while Judge Todd Hughes said he thought it was "very unwise" to make this claim, seeing as argument over the issue would be precluded at the trade court if the appellate court were to rule on it (U.S. v. Katana Racing, Fed. Cir. # 22-1832).
The U.S. Court of Appeals for the Federal Circuit issued its mandate granting exporter Deacero S.A.P.I.'s move to dismiss its appeal challenging the administrative review of the antidumping duty order on rebar products from Mexico. Both the U.S. and petitioner Rebar Trade Action Coalition consented to the motion. Deacero launched the suit to challenge the Commerce Department's treatment of Section 232 duties paid by Deacero as U.S. import duties, deducting them from the company's U.S. price in the dumping calculation (Deacero S.A.P.I. de C.V. v. United States, Fed. Cir. # 22-1486).
The Court of International Trade improperly upheld CBP's incorrect classification of conduit tubing imported from Mexico as steel tubing instead of insulated fittings, Shamrock Building Materials said in its June 5 opening brief at the U.S. Court of Appeals for the Federal Circuit (Shamrock Building Materials v. U.S., Fed. Cir. # 23-1648)
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The Judicial Council of the Federal Circuit voted to exclude Judge Pauline Newman from being assigned new cases amid a probe into her fitness to continue serving as a judge on the influential patent and trade court. The council said that Newman's backlog of opinions and significant delays in issuing opinions when they do come out warrants precluding the 95-year-old judge from presiding over any more cases.
The U.S. Court of Appeals for the Federal Circuit, during June 6 oral arguments, questioned countervailing duty petitioner Nucor Corp.'s claims against the Commerce Department's finding that the South Korean government did not provide a countervailable subsidy via its provision of electricity in the CVD investigation on carbon and alloy steel cut-to-length plate from South Korea. Responding to Nucor's argument that Commerce should have found the actual cost of electricity sold to the CVD respondents, Judge Raymond Chen said this "seems so unrealistically granular it doesn't make any sense" (POSCO v. United States, Fed. Cir. # 22-1525).