CAFC Gives US Leave to File Motion to Dismiss Pencil EAPA Case

The U.S. Court of Appeals for the Federal Circuit in a Dec. 29 order granted the U.S. motion for leave to file a motion to dismiss an Enforce and Protect Act appeal to the extent the motion must be filed within 14 days. The U.S. asked for leave to file the motion seeing as all the entries at issue have been liquidated (Royal Brush Manufacturing v. United States, Fed. Cir. #22-1226).

In the EAPA investigation, CBP said Royal Brush evaded the antidumping and countervailing duty orders on pencils from China by transshipping them through the Philippines. CBP determined during an unannounced site visit and a subsequent on-site verification that Royal Brush’s supplier in the Philippines was incapable of manufacturing pencils in the amounts imported. CBP officials also found evidence the supplier was repackaging Chinese-origin pencils into boxes marked, “Made in Philippines.”

Royal Brush sued, arguing its due process rights were violated because it was not granted access to the confidential information in the case and said the public summaries CBP did provide were inadequate. The Court of International Trade initially agreed with the latter point, but it stopped short of finding CBP should have shared all the confidential information with Royal Brush (see 2012020050). However, CIT eventually upheld the final evasion finding from CBP after it provided the public summaries (see 2111010036). The importer appealed to the Federal Circuit, where it is seeking a broader ruling against CBP on due process grounds (see 2202070071).

The U.S. asked for leave to seek a dismissal of the action since the entries have been liquidated (see 2212090066). The government said that after Royal Brush appealed, the previous DOJ counsel was told that all the appellant's entries liquidated before its request for an injunction from the trade court and that four of the five entries at issue liquidated during the EAPA proceeding. During judicial review of the case, DOJ saw several changes in personnel, leading to current counsel not learning of the jurisdictional issue, the U.S. said. The appellate court granted this leave.