The Supreme Court's decision in West Virginia v. EPA demands that the U.S. Court of Appeals for the Federal Circuit reconsider its decision finding that a protest with CBP is needed to retroactively apply Section 301 duty exclusions, the appellants and importers ARP Materials and Harrison Steel Castings argued in an Oct. 4 brief. Seeking reconsideration at the appellate court, ARP and Harrison said that the Federal Circuit's opinion does not consider the EPA case, which embraced the "major questions doctrine" -- the idea that federal agencies need explicit congressional approval to regulate issues fundamental to the economy (ARP Materials v. United States, Fed. Cir. #21-2176).

The U.S. Supreme Court in an Oct. 3 order took up a case over whether the government can indict a foreign state-owned bank under the Foreign Sovereign Immunities Act. Turkey's state-owned bank, Halkbank, was charged in October 2019 with fraud, money laundering and conspiracy to violate the International Emergency Economic Powers Act after allegedly working with Iran to evade U.S. sanctions. The case was brought to a New York district court, where a judge allowed the prosecution to proceed, finding that the FSIA doesn't extend to criminal cases and that if it did, its commercial activity exemptions allow for prosecution of the case (Turkiye Halk Bankasi A.S. v. U.S., #21-1450).

The Court of International Trade erroneously upheld the Commerce Department's finding that an Australian exporter did not reimburse an affiliated importer for antidumping duties paid and subsequent decision not to deduct the amount of the duties from the exporter's U.S. price, United States Steel Corp. argued in a Sept. 30 opening brief at the U.S. Court of Appeals for the Federal Circuit (United States Steel Corp. v. United States, Fed. Cir. #22-2078).

Surety company American Home Assurance Co.'s (AHAC's) affirmative defense of laches requires it to prove that it suffered prejudice given the government's delay in commencing a legal action over uncollected antidumping duties. AHAC has failed to do so and thus cannot make its laches claims, the U.S. argued in a Sept. 28 reply brief at the Court of International Trade. The surety company has failed to show either defense or economic prejudice in arguing that the case should be dismissed since it was filed beyond the statute of limitations to collect the duties under the bond, the U.S. said (United States v. American Home Assurance Company, CIT #20-00175).

A group of insurers and importers filed a lawsuit in the U.S. District Court for the Southern District of New York looking to seize a vessel as collateral for losses north of $39 million after thousands of shipping containers went overboard during a November 2020 voyage. Filing a five-count complaint at the district court, the plaintiffs said that the court should issue a warrant for the arrest of the vessel and its cargo given a group of shipping companies' damage to the cargo and breach of contract, among other violations (Mitsui Sumitomo Insurance Company of America v. M/V One Apus, S.D.N.Y. #22-08233).

CBP need not allow exporter Oman Fasteners to continue to post bond instead of paying Section 232 steel and aluminum duties given the exporter's "longstanding history" of failing to honor the bonding arrangement, the U.S. said in a Sept. 28 brief at the Court of International Trade. Replying to Oman Fasteners' motion to compel the U.S. to honor a CIT order, the government argued that the plaintiff's claims are based on an "incomplete telling of the facts," and that Oman Fasteners is not entitled to the privilege of bonding, especially when it has violated the bonding arrangement via under-bonding (Oman Fasteners v. United States, CIT #20-00037).

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The Court of International in a Sept. 27 order denied a joint motion from plaintiffs in an Enforce and Protect Act case and the U.S. to stay proceedings pending the trade court's resolution of an action looking into whether the Commerce Department's relevant scope determination was legal. Judge Mark Barnett held that the claims in the EAPA case "are largely independent of Commerce's scope ruling."

The Court of International Trade should reconsider its decision upholding the Commerce Department's differential pricing analysis in an antidumping duty review given the U.S. Court of Appeals for the Federal Circuit's decision calling the use of a statistical test underpinning the analysis into question, plaintiff SeAH Steel Corp. argued in a Sept. 26 motion. SeAH said the opinion also should be revisited over its move to uphold Commerce's inclusion of SeAH's inventory valuation losses as general and administrative (G&A) expenses (SeAH Steel Corp. v. United States, CIT Consol. #19-00086).

Steel company NLMK Pennsylvania has "no basis" to argue that the Court of International Trade should take over the Section 232 tariff exclusion process and simply award the importer hundreds of millions of dollars, the U.S. argued in a reply brief at the trade court. Looking to rebut NLMK's arguments seeking to discredit the Commerce Department's denials of NLMK's 58 Section 232 exclusion requests, the U.S. said that the relief that the steel company seeks is "clear overreach" (NLMK Pennsylvania v. United States, CIT #21-00507).