NetJets Aviation, a commercial airline operator, filed an amended complaint on Aug. 11 at the Court of International Trade, dropping its claim under Section 1581(i) after the Department of Justice moved to partially dismiss the case. Following litigation on the issue (see 2108110027), NJA simply moved forward and dropped the claim, succumbing to DOJ's view of the proper jurisdictional home for the case. Judge Claire Kelly also issued an order in the case reserving its decision on the jurisdiction questions in the case but extending the deadline for the U.S. to respond to the amended complaint until Aug. 31. The case is over whether NJA has to issue customs user fees to its passengers (NetJets Aviation, Inc. v. U.S., CIT #21-00142).
Court of International Trade activity
Husch Blackwell and one of its international trade partners, Jeffrey Neeley, committed legal malpractice when they went too far in a filing at the Court of International Trade subjecting imports of wood furniture to antidumping duties, Wego Chemical Group said in an Aug. 9 complaint at the U.S. District Court for the Southern District of New York. A motion filed by Neeley mistakenly requesting an injunction be lifted on all entries subject to an antidumping duty period led to Wego needlessly paying over $325,000 in customs duties, the company said (Wego Chemical Group Inc. v. Husch Blackwell LLP et al., S.D.N.Y. #21-06689).
The U.S. Court of Appeals for the Federal Circuit should find that pencil importer Prime Time Commerce did not exhaust its administrative remedies by failing to comment on the Commerce Department's remand results in the Court of International Trade, the Department of Justice told the appellate court. Despite its five attempts to obtain “gap-filling” information necessary to determine the correct antidumping rate in an administrative review, Prime Time did not comment on the case's remand results, meaning the importer stands in violation of the exhaustion doctrine that precludes judicial review, DOJ said in its reply brief (Prime Time Commerce, LLC v. U.S., Fed. Cir. #21-1783).
The Commerce Department properly calculated antidumping mandatory respondent LG Chem's cost of production when calculating constructed price, the Court of International Trade said in an Aug. 13 opinion. The case was over the antidumping duty investigation into acetone from South Korea. Judge M. Miller Baker held that Commerce's decision to spurn LG Chem's method for calculating the cost of the materials for making acetone in favor of the other mandatory respondent, Kumho P&B Chemical's, method was legal. This decision led to a higher antidumping rate for LG Chem in the investigation's final determination, sticking the exporter with a 25.05% rate.
The following lawsuits were recently filed at the Court of International Trade:
Plaintiffs in an antidumping case in the Court of International Trade, led by Fine Furniture (Shanghai) Limited, signed off on the Commerce Department's remand results in Aug. 11 comments, finding them in accordance with the CIT's instructions. The case stems from an antidumping administrative review on multilayered wood flooring from China. Following multiple court decisions and remand results (see 2107130080), Fine Furniture's case was stayed pending the results of a U.S. Court of Appeals for the Federal Circuit decision which eventually found that Fine Furniture is not subject to the antidumping duty order. Since the mandatory respondents in the underlying AD order received de minimis duty rates in Commerce's final determination, Fine Furniture was removed from the review. This led to the AD rate for all separate rate respondents falling to zero percent (Fine Furniture (Shanghai) Limited, et al. v. U.S., CIT Consol. #14-00135).
Printed circuit board assembly importer Triumph Engine Control Systems moved to overturn the dismissal of four of its cases issued by the Court of International Trade in an Aug. 9 filing. Claiming that it clears the standard for reversing dismissals due to lack of prosecution set in the Supreme Court case Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, the importer requested an extension of the time to remain on the Customs Case Management Calendar (Triumph Engine Control Systems, LLC v. U.S., CIT #19-00108, #19-00109, #19-00110, #19-00130).
Commercial airline operator NetJets Aviation's request for leave to reassert Section 1581(i) jurisdiction in a customs challenge should jurisdiction under Section 1581(a) be unavailable should be denied, the Department of Justice said in Aug. 10 comments at the Court of International Trade. Further responding to its motion to partially dismiss NJA's case, DOJ said that the court lacks jurisdiction for the spat under Section 1581(i) and that NJA fails to even allege that this jurisdiction is available in its response (NetJets Aviation, Inc. v. U.S., CIT #21-00142).
Plaintiffs, led by American Pacific Plywood, that stand accused of evading antidumping and countervailing duty orders on hardwood plywood from China vigorously challenged CBP's finding of evasion, in an Aug. 5 brief backing their motion for judgment at the Court of International Trade. In another case going after CBP's alleged violations of due process in Enforce and Protect Act investigations (see 2107010085), the plaintiffs argued that CBP's missteps are not merely procedural mistakes, but rather a "failure of essential process that led to profound harm." The violations are so egregious that they "would be unacceptable in any country that prides itself on democratic process -- and for the United States, they are a travesty," the brief said (American Pacific Plywood, Inc. et al. v. United States, CIT Consol. #20-03914).
The Commerce Department and the International Trade Commission published the following Federal Register notices Aug. 11 on AD/CV duty proceedings: