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CAFC Gives US More Time to File Reply to Rehearing Bid in Suit on Safeguard Exclusion

The U.S. Court of Appeals for the Federal Circuit on Jan. 26 gave the U.S. another 14 days to file its response to a group of solar panel exporters' bid for rehearing of the appellate court's ruling that President Donald Trump properly revoked a tariff exclusion for bifacial solar panels. The government has until Feb. 16 to submit its brief, which was invited by the court following the rehearing motion (see 2401220027) (Solar Energy Industries Association v. U.S., Fed. Cir. # 22-1392).

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In their petition, the exporters, led by the Solar Energy Industries Association, said the full court should review the case to alter or revoke the deference afforded to the president established by the U.S. Supreme Court in Maple Leaf Fish Co. v. U.S. Under this standard, the courts can set aside presidential action "only if it involves a 'clear misconstruction of the governing statute,'" the brief said (see 2401120034). Libertarian think tank Cato Institute recently filed an amicus brief in the case, also requesting that the court overturn the Maple Leaf standard.

The panel ruled in November that Trump didn't clearly misconstrue the statute when revoking the bifacial solar panel tariff exclusion (see 2311130031). Judges Alan Lourie, Richard Taranto and Leonard Stark said the statute under which Trump made the revocation -- Section 2254(b)(1)(B) of the Trade Act of 1930 -- allows for trade-restricting modifications and not only trade-liberalizing ones.