The Judicial Council of the Federal Circuit on Sept. 6 extended the ban on Judge Pauline Newman from hearing new cases for another year. The decision comes after a recommendation from Judges Kimberly Moore, Sharon Prost and Richard Taranto to extend the sanction on Newman, 97, which was originally imposed for her refusal to cooperate with an investigation into her fitness to continue serving as a judge (see 2407240029). The three judges said Newman hadn't shown any evidence to undermine the record "raising serious concerns about" her "cognitive state" and that the judge still hasn't cooperated with the investigation. The extended ban will run for one year from the date of the Sept. 6 order.
Court of Federal Appeals Trade activity
The U.S. Court of Appeals for the Federal Circuit on Sept. 4 proposed amendments on its rules of practice, which, if adopted, would take effect Dec. 1. Comments on the rule changes are due on or before Oct. 4, the court said.
The U.S. Court of Appeals for the Federal Circuit on Sept. 5 issued its mandate in a trio of cases on whether the Continued Dumping and Subsidy Offset Act of 2000 requires payouts of interest assessed after liquidation, known as delinquency interest, to affected domestic producers. In July, the court said the Act doesn't require the payment of delinquency interest but only requires payments of interest that's "earned" on antidumping and countervailing duties and "assessed under" the associated AD or CVD order (see 2407150031). The mandate awarded $44.16 in costs to the U.S. (Adee Honey Farms, et al. v. United States, Fed. Cir. # 22-2105) (Hilex Poly Co. v. United States, Fed. Cir. # 22-2106) (American Drew v. United States, Fed. Cir. # 22-2114).
Judges at the U.S. Court of Appeals for the Federal Circuit on Sept. 4 heard oral argument in a tariff classification case on electrical conduit imported by Shamrock Building Materials. Judges Richard Taranto, Todd Hughes and Tiffany Cunningham asked whether the conduit had an insulating function and whether there is a de minimis amount of insulating material a conduit needs to include to qualify for classification under Harmonized Tariff Schedule heading 8547 (Shamrock Building Materials v. United States, Fed. Cir. # 23-1648).
On appeal, the U.S. supported Court of International Trade Judge Jane Restani’s decision that imported weekly/monthly planners were properly classified as “diaries” under heading 4820 of the Harmonized Tariff Schedule (see 2404100052). The decision subjected the importer to Section 301 tariffs (Blue Sky The Color of Imagination v. U.S., Fed. Cir. # 24-1710).
The U.S. Court of Appeals for the Federal Circuit during oral argument on Sept. 3 strongly questioned the U.S. in a customs case on whether cookware imports from Meyer Corp. qualify for first sale treatment. Judges Sharon Prost, Todd Hughes and Tiffany Cunningham questioned the government's defense of the Court of International Trade's decision to deny Meyer first sale valuation seemingly based on an adverse inference drawn against the company for its failure to submit its parent company's financial information (Meyer Corp. v. United States, Fed. Cir. # 23-1570).
German paper exporter Koehler asked the Court of International Trade on Aug. 30 to certify for immediate appeal its decision allowing service on the company via its U.S. counsel. Koehler said the issue of service in the case is "appropriate for prompt review" by the U.S. Court of Appeals for the Federal Circuit since the issue is a novel one for both CIT and CAFC and "entirely separate from the underlying merits of the case" (United States v. Koehler Oberkirch, CIT # 24-00014).
The U.S. Court of Appeals for the Federal Circuit didn't select the Section 301 litigation for its October schedule, setting up early November as the earliest time the case could be heard. Matt Nicely, counsel for the lead plaintiffs in the case involving over 4,000 companies, said in an email that he's "optimistic" oral argument in the action "will still happen before the end of the year." All arguing attorneys finished submitting their notices of conflicts with oral argument in April (HMTX Industries v. United States, Fed. Cir. # 23-1891).
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Antidumping duty petitioner the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations on Aug. 22 moved to file an amicus brief at the U.S. Court of Appeals for the Federal Circuit in a case on the Commerce Department's use of the Cohen's d test to detect "masked" dumping. The committee filed the brief in response to arguments from amici led by the Canadian government, which invoked various academic literature on the use of the test (Mid Continent Steel & Wire v. U.S., Fed. Cir. # 24-1556).