CAFC Lifts Preliminary Injunction That Prevented CITA from Taking Action on China Safeguard Petitions Based on Threat of Market Disruption
On April 27, 2005, a three-judge panel of the Court of Appeals for the Federal Circuit (CAFC) issued an order in USA-ITA v. U.S., et. al. which lifted the Court of International Trade's (CIT) preliminary injunction that has prevented the Committee for the Implementation of Textile Agreements (CITA) from considering, accepting or taking any further action on any China safeguard petitions based on the threat of market disruption.
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The CAFC states in its order that the preliminary injunction is lifted (stayed) pending resolution of the government's appeal of the preliminary injunction, which is scheduled to be argued before the CAFC on May 5, 2005.
The CAFC states that it has taken this action, among other reasons, because the government has made a strong showing that the United States Association of Importers of Textiles and Apparel's (USA-ITA) claim is not ripe for consideration as the decision of CITA to consider requesting consultations with China is merely a threshold question, not a final agency action.
The CAFC also states that the government made a strong showing that the published CITA procedure, when properly interpreted, allows the consideration of whether to request consultations with China to be based on current data suggesting a threat of future market disruption, rather than only upon present disruption.
Moreover, the CAFC concludes that the government has made a strong showing that it is likely to succeed in its CAFC appeal of the preliminary injunction.
In addition, the CAFC states that it finds that the injuries from the preliminary injunction identified by the government sufficiently irreparable, substantial, and tied to the public interest, etc.
CAFC Order (D/N 05-1209, dated 04/27/05, 4 pp) available by fax by emailing documents@brokerpower.com
Background Timeline
According to trade sources, the follow sequence of events regarding this litigation has occurred:
December 30, 2004 - CIT issues preliminary injunction
January 27, 2005 - Government files a motion with the CIT to lift (stay) preliminary injunction
January 31, 2005 - CIT denies government's motion to lift (stay) preliminary injunction
February 14, 2005 - The government files with the CAFC its appeal of the CIT's preliminary injunction; also pending before the CAFC is the government's request for a stay of the CIT's preliminary injunction pending the completion of this appeal
April 27, 2005 - CAFC lifts (stays) CIT's preliminary injunction pending outcome of government's CAFC appeal of the CIT's preliminary injunction
May 5, 2005 - Government's appeal of CIT's preliminary injunction scheduled to be argued before CAFC