Court of Federal Appeals Trade activity

The Court of International Trade should not again remand an antidumping duty investigation on forged steel fluid end blocks from Germany because respondent Ellwood City Forge failed to exhaust its administrative remedies regarding the margin program before it filed suit at CIT, intervenor Edelstahl Siegen said in its May 15 remand comments (Ellwood City Forge v. U.S., CIT # 21-00077).

Importer Acquisition 362, d/b/a Strategic Import Supply (SIS), filed a petition for writ of certiorari at the U.S. Supreme Court of a U.S. Court of Appeals for the Federal Circuit opinion requiring protests to be filed within 180 days of liquidation and not the date the Commerce Department issues antidumping and countervailing duty instructions to CBP. SIS said that by establishing this requirement, the appellate court eliminated one statutory mechanism under which importers can file protests and encourages "premature, incomplete, sham protest filings" (Acquisition 362 v. U.S., U.S. # 22-1102).

The U.S. voiced its opposition to countervailing duty respondent Tau-Ken Temir's bid to make a fourth correction to its opening brief at the U.S. Court of Appeals for the Federal Circuit. The government said TKT's attempt to shoehorn arguments on the Commerce Department's new regulations concerning untimely submitted files violates the limitations on raising new authorities. If new authorities arise after a brief has been filed, the litigant must alert the court via a letter, the government said. TKT tried instead to insert a new argument in its corrections to its opening brief, sidestepping these limitations and "presenting a continually moving target" and impacting the government's ability to respond (Tau-Ken Temir v. United States, Fed. Cir. # 22-2204).

The U.S. Court of Appeals for the Federal Circuit rejected customs broker license exam test-taker Byungmin Chae's petition for rehearing in his pro se case challenging the answers to a handful of questions on the April 2018 exam. Judges Pauline Newman, Sharon Prost and Kimberly Hughes rejected the petition in a per curiam order. After failing the exam initially, Chae appealed his results twice to CBP, once at the Court of International Trade and once at the Federal Circuit, leaving him just one question shy of a passing grade (see 2305100030). His rehearing bid centered on one question that was previously considered by the appellate court (Byungmin Chae v. Janet Yellen, Fed. Cir. # 22-2017).

The U.S. reply in a scope case on Vandewater International's steel branch outlets fails to follow either scope principle established by the U.S. Court of Appeals for the Federal Circuit's key precedential opinion in Arcelormittal Stainless Belg. v. U.S., appellant Sigma Corp. told the appellate court in a reply brief. In violation of Arcelormittal, the government interpreted the antidumping duty order on butt-weld pipe fittings from China in a vacuum devoid of any consideration of the way the order's language is used in the relevant industry and identified ambiguity where none exists, Sigma argued (Vandewater International v. United States, Fed. Cir. # 23-1093).

U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman filed suit in the U.S. District Court for the District of Columbia in a bid to stop CAFC Judge Kimberly Moore's investigation of Newman's fitness to continue serving on the court. Retaining the New Civil Liberties Alliance as counsel, Newman argued that the fitness proceedings constitute a violation of the separation of powers as spelled out in the U.S. Constitution (The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, D.D.C. # 23-01334).

Byungmin Chae filed a petition May 9 for a rehearing of a U.S. Court of Appeals for the Federal Circuit opinion that landed him one question shy of passing the customs broker exam he took in April 2018. The multiple choice question asked which mail articles are not subject to CBP examination or inspection (Byungmin Chae v. Janet Yellen, Fed. Cir. # 22-2017).

The Court of International Trade erred in failing to grant importer Meyer Corp. first sale treatment when valuing its cookware imports, the importer told the U.S. Court of Appeals for the Federal Circuit in its opening brief. In one of "two major assignments of error," Meyer said CIT impermissibly rejected first sale prices based on the absence of financial information from Meyer's parent company, Meyer International Holdings (Meyer Corp. v. United States, Fed. Cir. #23-1570).

The U.S. Court of Appeals for the Federal Circuit should not allow countervailing duty respondent Tau-Ken Temir to "continually revise its opening brief under the guise of a Notice of Correction," CVD petitioners Globe Specialty Metal and Mississippi Silicon argued in a reply brief. Voicing their opposition to TKT's and the Kazakh Ministry of Trade Integration's request to file a fourth opening brief, Globe and Mississippi Silicon said that "even a cursory review of the changes" shows a "litany of changes that are substantive in nature, including new arguments and sentences, deletions of material, and large-scale replacements of discussion" (Tau-Ken Temir v. United States, Fed. Cir. # 22-2204).

The U.S. Court of Appeals for the Federal Circuit issued its mandate in a countervailing duty scope case in which the court said exporter China Custom Manufacturing's solar panel mounts do not qualify for the "finished merchandise" exclusions from the antidumping and countervailing duty orders on aluminum extrusions from China (see 2303020037). CCM unsuccessfully filed for a rehearing of the opinion, arguing that the court needed to look at the case again to ensure uniformity of the appellate court's prior decisions on the "unambiguous plain language" of the finished merchandise exclusion rule (China Custom Manufacturing v. United States, Fed. Cir. # 22-1345).