Four Canadian lumber exporters, along with their cross-owned affiliates, referred to as the "Originally Excluded Parties," asked the Court of International Trade to relieve them from the effects of a court order reinstating the countervailing duty order on softwood lumber products from Canada. The originally excluded parties said the order was based on an earlier judgment, which the U.S. Court of Appeals for the Federal Circuit reversed, concerning the legal ground for conducting expedited CVD reviews, meaning that the trade court should restore "the status quo ante that existed prior" to the order for the remainder of the case (Committee Overseeing Action for Lumber International Trade Investigations or Negotiations v. U.S., CIT Consol. # 19-00122).
Court of Federal Appeals Trade activity
Trade Law Daily is providing readers with the top stories from last week in case you missed them. All articles can be found by searching on the title or by clicking on the hyperlinked reference number.
The U.S. asked the U.S. Court of Appeals for the Federal Circuit on Oct. 5 for 14 more days to file its reply brief in a case on the antidumping duty investigation on utility scale wind towers from Canada. The government said a second extension -- the first was 58 days long -- is required by its heavy workload in other matters. All the parties consented to the motion, though Jay Campbell, counsel for appellants led by Marmen Inc., said the companies believe that an extension is unwarranted, given the first, 58-day, extension (Marmen v. United States, Fed. Cir. # 23-1877).
The U.S. District Court for the District of Columbia adopted an amended briefing schedule in U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman's case against three of her colleagues pertaining to their fitness investigation of the 96-year-old judge (Hon. Pauline Newman v. Hon. Kimberly Moore, D.D.C. # 23-01334).
The Commerce Department's use of adverse facts available against Greek exporter Corinth Pipeworks Pipe Industry was "flawed" since the agency never gave the company a chance to comment on its calculation and analysis, Corinth argued in its Sept. 29 opening brief at the U.S. Court of Appeals for the Federal Circuit. The exporter added that Commerce also failed to support its use of a 41.04% AFA rate since the company didn't withhold information, impede the antidumping duty review on large diameter welded pipe from Greece or fail to submit information in the form and manner requested (Corinth Pipeworks Pipe Industry v. United States, Fed. Cir. # 23-2094).
The Court of International Trade's decision ordering CBP to reliquidate customs entries flatly cuts against a recent U.S. Court of Appeals for the Federal Circuit decision that ruled against reliquidation after a court case led to a higher dumping rate for a different exporter, retail giant Target told the appellate court (Target v. U.S., Fed. Cir. # 23-2274).
The Commerce Department's refusal to adjust its threshold for differentiating between different types of pasta as part of the duty calculation in the 2018-19 antidumping review of pasta from Italy violated the law, exporters La Molisana and Valdigrano di Flavio Pagani argued in their Sept. 26 opening brief at the U.S. Court of Appeals for the Federal Circuit. La Molisana said Commerce's use of the "protein content on a FDA nutrition fact panel to determine protein content" ignores the different standards used in finding the number of grams of protein (La Molisana v. United States, Fed. Cir. # 23-2060).
The U.S. Court of Appeals for the Federal Circuit on Sept. 25 issued its mandate in a case concerning a $5.7 million customs penalty suit against importer Katana Racing. In the opinion, the appellate court said the Court of International Trade improperly dismissed the suit for lack of jurisdiction (see 2308030034). The trade court said Katana properly revoked a statute of limitations waiver, making the U.S. government's suit untimely, but the appellate court said the statute of limitations is "not a jurisdictional time limit" and instead provides an "affirmative defense" that can be waived (U.S. v. Katana Racing, Fed. Cir. # 22-1832).
The U.S. Court of Appeals for the Federal Circuit issued its mandate Sept. 22 in Royal Brush Manufacturing v. U.S. The appellate court ruled in July that CBP violated importer Royal Brush's due process rights during an Enforce and Protect Act investigation by not providing the company with access to business confidential information (see 2307270038). The ruling has raised questions on how CBP would respond and how it will conduct its antidumping and countervailing duty evasion investigations in the future. Royal Brush counsel Steven Gordon emailed that the U.S. hasn't petitioned for a rehearing and that he doesn't expect an appeal to the U.S. Supreme Court (Royal Brush Manufacturing v. U.S., Fed. Cir. # 22-1226).
The Judicial Council of the Federal Circuit in a Sept. 20 order affirmed a three-judge panel's suggestion that Judge Pauline Newman shouldn't be assigned new cases for one year due to her efforts to impede the probe into her fitness to continue serving on the bench. The council said the evidence "amply justified" an order subjecting Newman to a medical examination and that her refusal to comply, among other things, thwarted the council's ability to decide whether she "has a disability that renders her unable to perform the duties of her important office."