Court of Federal Appeals Trade activity

The Court of International Trade upheld the Commerce Department's final results in the antidumping duty administrative review on standard pipe from Turkey for 2020-21 after the issue in the case brought by exporter Borusan Mannesmann Boru Sanayi ve Ticaret was resolved by the U.S. Court of Appeals for the Federal Circuit. The appellate court ruled that Commerce can legally deduct President Donald Trump's Section 232 steel and aluminum duties from an exporter's U.S. price in AD proceedings (see 2303150035). Borusan had raised the issue in a separate case at CIT (Borusan Mannesmann Boru Sanayi ve Ticaret v. United States, CIT # 23-00005).

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. voiced its opposition to countervailing duty respondent Tau-Ken Temir's bid to make a fourth correction to its opening brief at the U.S. Court of Appeals for the Federal Circuit. The government said TKT's attempt to shoehorn arguments on the Commerce Department's new regulations concerning untimely submitted files violates the limitations on raising new authorities. If new authorities arise after a brief has been filed, the litigant must alert the court via a letter, the government said. TKT tried instead to insert a new argument in its corrections to its opening brief, sidestepping these limitations and "presenting a continually moving target" and impacting the government's ability to respond (Tau-Ken Temir v. United States, Fed. Cir. # 22-2204).

The U.S. Court of Appeals for the Federal Circuit rejected customs broker license exam test-taker Byungmin Chae's petition for rehearing in his pro se case challenging the answers to a handful of questions on the April 2018 exam. Judges Pauline Newman, Sharon Prost and Kimberly Hughes rejected the petition in a per curiam order. After failing the exam initially, Chae appealed his results twice to CBP, once at the Court of International Trade and once at the Federal Circuit, leaving him just one question shy of a passing grade (see 2305100030). His rehearing bid centered on one question that was previously considered by the appellate court (Byungmin Chae v. Janet Yellen, Fed. Cir. # 22-2017).

Importer Acquisition 362, d/b/a Strategic Import Supply (SIS), filed a petition for writ of certiorari at the U.S. Supreme Court of a U.S. Court of Appeals for the Federal Circuit opinion requiring protests to be filed within 180 days of liquidation and not the date the Commerce Department issues antidumping and countervailing duty instructions to CBP. SIS said that by establishing this requirement, the appellate court eliminated one statutory mechanism under which importers can file protests and encourages "premature, incomplete, sham protest filings" (Acquisition 362 v. U.S., U.S. # 22-1102).

The U.S. reply in a scope case on Vandewater International's steel branch outlets fails to follow either scope principle established by the U.S. Court of Appeals for the Federal Circuit's key precedential opinion in Arcelormittal Stainless Belg. v. U.S., appellant Sigma Corp. told the appellate court in a reply brief. In violation of Arcelormittal, the government interpreted the antidumping duty order on butt-weld pipe fittings from China in a vacuum devoid of any consideration of the way the order's language is used in the relevant industry and identified ambiguity where none exists, Sigma argued (Vandewater International v. United States, Fed. Cir. # 23-1093).

U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman filed suit in the U.S. District Court for the District of Columbia in a bid to stop CAFC Judge Kimberly Moore's investigation of Newman's fitness to continue serving on the court. Retaining the New Civil Liberties Alliance as counsel, Newman argued that the fitness proceedings constitute a violation of the separation of powers as spelled out in the U.S. Constitution (The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, D.D.C. # 23-01334).

The U.S. Court of Appeals for the Federal Circuit issued its mandate in a countervailing duty scope case in which the court said exporter China Custom Manufacturing's solar panel mounts do not qualify for the "finished merchandise" exclusions from the antidumping and countervailing duty orders on aluminum extrusions from China (see 2303020037). CCM unsuccessfully filed for a rehearing of the opinion, arguing that the court needed to look at the case again to ensure uniformity of the appellate court's prior decisions on the "unambiguous plain language" of the finished merchandise exclusion rule (China Custom Manufacturing v. United States, Fed. Cir. # 22-1345).

Byungmin Chae filed a petition May 9 for a rehearing of a U.S. Court of Appeals for the Federal Circuit opinion that landed him one question shy of passing the customs broker exam he took in April 2018. The multiple choice question asked which mail articles are not subject to CBP examination or inspection (Byungmin Chae v. Janet Yellen, Fed. Cir. # 22-2017).

The U.S. Court of Appeals for the Federal Circuit granted exporter SeAH Steel's motion to voluntarily dismiss its appeal on the Commerce Department's use of the Cohen's d test, which is used to root out "masked" dumping. Recently, the Court of International Trade upheld Commerce's explanations of its use of the test in response to questions raised by the Federal Circuit (see 2302270049) (SeAH Steel v. United States, Fed. Cir. # 23-1657).