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US Says CIT Can't Stay CAFC Mandate in Suit on Section 232 'Derivatives' Duties

The Court of International Trade lacks the authority to prevent CBP from collecting Section 232 steel and aluminum duties from importer PrimeSource Building Products given the U.S. Court of Appeals for the Federal Circuit's ruling upholding the duties, the government argued in a recent brief. Responding to PrimeSource's request for a stay of the appellate court's mandate pending its appeal of the suit to the U.S. Supreme Court, the U.S. said the Federal Circuit's mandate "could not be clearer": President Donald Trump's expansion of the duties to cover steel and aluminum "derivatives" is lawful and CBP's collection of the duties proper (PrimeSource Building Products v. U.S., CIT # 20-00032).

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The government said PrimeSource failed to identify a single decision in which the trial court has sidestepped the effect of an appellate court's judgment pending a petition for a writ of certiorari. "This is unsurprising," the brief said, since nearly "every court to address this question has made clear that the 'appropriate court'" to find a review of an appellate court's denial of a motion to stay its mandate is the Supreme Court.

The Federal Circuit ruled that Trump legally expanded the Section 232 duties to cover derivative products even though the move was made beyond procedural time limits. PrimeSource recently petitioned the Supreme Court to take up the case, saying the case could be an opportunity for the high Court to settle ambiguity in statutes delegating "vast legislative power to the Executive in favor of restraining the delegation" (see 2307270028).

At the trade court, PrimeSource moved for a stay pending the appeal, prompting the government's opposition. The U.S. said, among other things, that the stay should be rejected since there is no "reasonable probability that the Supreme Court will grant certiorari." The PrimeSource appeal echoes many of the same claims as presented before the Supreme Court in Transpacific Steel v. U.S., which the court refused to take up, government argued. In that case, the importer said Trump illegally raised the Section 232 duties beyond those same procedural time limits.