The U.S. Court of Appeals for the Federal Circuit issued an errata in its Royal Brush Manufacturing v. U.S. opinion. The court removed the word "not" from the sentence that originally read, "The government nonetheless argues that confidential business information cannot not be disclosed absent a statute or regulation authorizing a protective order." In the opinion, the appellate court said that CBP violated importer Royal Brush's due process rights by failing to provide it access to business confidential information in an Enforce and Protect Act proceeding (see 2307270038).
Court of Federal Appeals Trade activity
The Commerce Department legally selected Malaysian import data to value backsheet and ethyl vinyl acetate (EVA) in an antidumping duty review on solar cells from China because that data best corresponds to the inputs used by exporter Risen Energy Co., the U.S. argued in an Aug. 3 reply brief at the U.S. Court of Appeals for the Federal Circuit (Risen Energy Co. v. United States, Fed. Cir. # 23-11550).
A three-judge committee at the U.S. Court of Appeals for the Federal Circuit found that Judge Pauline Newman committed a "serious form of misconduct" by thwarting the investigation into her fitness to continue serving at the court. Releasing its findings publicly Aug. 4, the committee recommended the court's Judicial Council bar Newman from sitting on any new cases for a one-year period "until she complies with the Committee's outstanding orders such that the inquiry into whether she suffers from a disability may be completed."
The Court of International Trade improperly dismissed for lack of jurisdiction a $5.7 million customs penalty suit against importer Katana Racing, the U.S. Court of Appeals for the Federal Circuit said in an Aug. 3 opinion. While the trade court said Katana properly revoked a statute of limitations waiver making the U.S. government's suit untimely, Judges Sharon Prost, Alvin Schall and Todd Hughes said the statute of limitations "is not a jurisdictional time limit." Instead, it provides an "affirmative defense" that can be waived.
The U.S. Court of Appeals for the Federal Circuit officially issued its order vacating and remanding the Court of International Trade's opinion upholding CBP's evasion finding for importer Royal Brush Manufacturing. The Aug. 1 order came a few days after the court's consequential opinion, which said CBP violated Royal Brush's due process rights by not giving it access to confidential information in the Enforce and Protect Act investigation into the company (see 2307270038). The order remands the antidumping and countervailing duty evasion case so the agency can make the whole record available to the importer (Royal Brush Manufacturing v. United States, Fed. Cir. # 22-1226).
The Court of Appeals for the Federal Circuit in an Aug. 3 opinion reversed the Court of International Trade's decision tossing a $5.7 million customs penalty suit from the U.S. against importer Katana Racing for lack of jurisdiction. The trade court said Katana properly revoked a statute of limitations waiver, making the government's suit untimely. However, Judges Sharon Prost, Alvin Schall and Todd Hughes said the statute of limitations "is not a jurisdictional time limit" and instead provides an "affirmative defense" that can be waived. While the appellate court said CIT erred in tossing the suit for lack of jurisdiction, Katana is still free to claim that its statute of limitations waiver was void as part of an affirmative defense.
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The U.S. Court of Appeals for the Federal Circuit's recent ruling in Royal Brush Manufacturing v. U.S., which found that CBP violated importer Royal Brush's due process rights by not giving it access to business confidential information in an antidumping and countervailing duty evasion proceeding, "may have broader implications," including on forced labor issues, customs lawyer Lawrence Friedman said in a July 28 blog post. If the decision "applies generally, it may require that" CBP make its record fully available, including BCI, which would be an "interesting unintended consequence" of this Enforce and Protect Act case, Friedman said.
A group of retail trade groups, led by the American Apparel and Footwear Association, said that the Office of the U.S. Trade Representative failed to adequately respond to comments when imposing its lists 3 and 4A Section 301 tariffs on China. Submitting an amicus brief at the U.S. Court of Appeals for the Federal Circuit in the massive case against the duties, the retail representatives argued that USTR illegally relied on the president's discretion as a response to the comments, violating the Administrative Procedure Act (HMTX Industries, et al. v. U.S., Fed. Cir. # 23-1891).
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.