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US Opposes CVD Respondent's Bid to Correct Opening Brief, Add New Information at CAFC

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).

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TKT has already made three corrections to its opening brief, resulting in three different versions of the brief in the docket. After the third brief was found to not be in compliance with court rules, the respondent filed a notice of correction and, if needed, a motion for leave to correct the brief. Petitioners Globe and Mississippi Silicon first noted their opposition to the bid to correct the brief a fourth time, noting that 615 changes had been made between the first and third versions of the brief (see 2305100067).

The government added its voice to the opposition, arguing that even if TKT is allowed to include Commerce's new regulations into its brief, the new argument is "meritless." The government said that even if the agency "enacted new instructions tailored to respond to the circumstances TKT now finds itself in, that argument still fails because it would not be a permissible argument." The new regulations are not on the record, the U.S. said. TKT is challenging Commerce's use of a total adverse facts available rate due to an untimely filed submission in the proceedings (see 2303010060).