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Exporter Says CIT Opinion Consolidating Bid for Injunction With Motion for Judgment Not Appealable

Antidumping duty petitioner Mid Continent Steel & Wire does not have standing to appeal a Court of International Trade decision barring the government from collected AD cash deposits from exporter Oman Fasteners at the "punitive" 154.33% dumping rate, Oman Fasteners argued in a reply brief at the U.S. Court of Appeals for the Federal Circuit. Mid Continent is not subject to the injunction and cannot establish legally protected interest in the injunction, "which merely keeps Oman Fasteners in business until a final rate can be determined," the brief said (Oman Fasteners v. United States, Fed. Cir. # 23-1661).

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Mid-Continent appeals CIT's consolidation of a motion for the injunction with a motion for judgment (see 2302280040), but the appeal, which concerns the Commerce Department's use of total adverse facts available due to a missed filing deadline from Oman Fasteners, should be dismissed since the motion to consolidate cannot be appealed until the remand proceeding back at the trade court is resolved. Only the final AD rate, and not the cash deposit mark, allows for Mid Continent to claim injury, Oman Fasteners claimed

Oman Fasteners argued that even if the case could be appealed, CIT did not abuse its discretion by consolidating the injunction bid with the merits of the case. While Mid Continent said it wanted more time to "brief irreparable harm," the exporter said Judge M. Miller Baker's consolidation order only affected the timing of the CIT merits decision and not the court's consideration of irreparable harm. "In any event, Mid Continent does not even attempt to show that extra time or briefing would have changed the outcome here," the brief said.

In its reply, Oman Fasteners also argued that CIT correctly found that the Oman Fasteners otherwise "had no adequate remedy at law." While Mid Continent said that Oman Fasteners could recover monetary damages from a third party's liability insurer, the exporter said Mid Continent had no support for this claim on the record and "no authority suggesting that such a possibility provides an adequate alternative remedy." The company said that "[d]amages years down the line would not remedy the irreparable harm to Oman Fasteners’ business -- lost employees, lost customer relationships, and potentially insolvency."

The balance of hardships also clearly favors Oman Fasteners, the brief claimed. The company faces "existential doom," while the government faces "at most an inconvenience." Despite Mid Continent's claims that the trade court should have considered its hardships, Oman Fasteners said that the petitioner forfeited this claim by not advancing it at CIT. Oman Fasteners added that public interest favors the exporter since "the government does not have an interest in collecting exorbitant and unlawful duties."

At the trade court, Baker rebuked the use of total AFA over a 16-minutes-late submission. The judge said the suit was "not a close case" and blasted Commerce's inadequate explanation for why one late submission due to a filing difficulty was enough to find that Oman Fasteners failed to cooperate to the best of its ability or why the company deserved the punitive rate.