US Files New Motion to Dismiss Aluminum Rod Importer's Amended Complaint

The U.S. once again filed a motion to dismiss a case brought by an aluminum rod importer that alleged the Commerce Department had denied a Section 232 tariff exclusion request by pointing to promises made by the importer’s domestic competitor. The U.S. called most of the importer’s claims untimely and unactionable (Prysmian Cables and Systems USA v. U.S., CIT # 24-00101).

The motion to dismiss involved the amended first complaint by importer Prysmian Cables and Systems. The importer’s claim has been made recently by different parties in separate litigation (see 2406120057, 2406200047 and 2405100067).

Prysmian filed under 28 U.S.C. 1581(i) regarding 17 exclusion denials between 2019 and 2023.

In its amended complaint, the importer also added a claim for all requests under 5 U.S.C. 706(1), saying that Commerce “unlawfully withheld or unreasonably delayed” agency action.

But this fails to state a claim for relief “because Prysmian does not allege that Commerce failed to take a discrete action,” the government said.

“Prysmian acknowledges that Commerce did take action by denying its exclusion requests,” it said.

And the government argued again (see 2408050032) that all but the final two occurred more than two years ago, however, making those counts of Prysmian’s complaint untimely.

The U.S. also noted the Court of International Trade had stayed the deadline for the two parties to propose a briefing schedule, “given that resolution of the motion could affect both the size of the administrative record and what matters require briefing.” It said that it, with the consent of Prysmian, was requesting the stay be extended.