EAPA Litigation

The U.S. Court of Appeals for the Federal Circuit on Jan. 26 granted the U.S. request for a voluntary remand in an Enforce and Protect Act case led by American Pacific Plywood to address the Federal Circuit's holding in Royal Brush Manufacturing v. U.S. In that decision, the appellate court said CBP violated an EAPA respondent's due process rights by not providing it with access to confidential business information in the investigation (American Pacific Plywood v. U.S., Fed. Cir. # 23-2321).

The U.S. Court of Appeals for the Federal Circuit on Jan. 25 granted the U.S. government's unopposed motion to voluntarily remand an Enforce and Protect Act case to consider the appellate court's ruling in Royal Brush Manufacturing v. U.S. In Royal Brush, the Federal Circuit said CBP violated an EAPA respondent's due process rights by failing to provide it access to the business confidential information in the proceeding (Skyview Cabinet USA v. United States, Fed. Cir. # 23-2318).

The Court of International Trade on Jan. 23 denied a U.S. request for a voluntary remand to reconsider due process issues in an Enforce and Protect Act case involving cast iron soil pipe imports by Phoenix Metal, in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S.

Pencil importer Royal Brush Manufacturing was required to file protests before it could challenge CBP's allegedly improper liquidations under an Enforce and Protect Act antidumping duty evasion investigation, the Court of International Trade ruled on Dec. 15. Dismissing the company's case for lack of jurisdiction, Judge Mark Barnett echoed the U.S. Court of Appeals for the Federal Circuit's ruling in Juice Farms v. U.S. in ruling that "all liquidations, whether legal or not, are subject to the timely protest requirement."

The Court of International Trade in a Dec. 14 opinion granted the government's request for a voluntary remand in a duty evasion case on hardwood plywood from China in light of two recent judicial opinions. One decision saw the Commerce Department reverse course on whether exporter Vietnam Finewood Co.'s goods are subject to the antidumping and countervailing duty orders, while the other said it was illegal for CBP not to give parties to Enforce and Protect Act actions access to business confidential information.

The U.S. Court of Appeals for the Federal Circuit on Dec. 8 lifted a stay in an Enforce and Protect Act case following its decision in the key Royal Brush Manufacturing v. U.S. case. In that decision, the appellate court said CBP violated an EAPA respondent's due process rights by not giving it access to the confidential information in the proceeding (see 2307270038). The present case concerns an EAPA investigation on the alleged transshipment of Chinese xanthan gum via India and was stayed pending the resolution of Royal Brush, given the overlap in the due process claims (see 2310170034). The U.S. is now attempting to distinguish its present situation from Royal Brush, arguing that the Federal Circuit's recent decision is irrelevant since "the facts here are materially different" seeing as liquidation became final in the present spat given that the importer didn't appeal its denied protest at CBP (All One God Faith v. United States, Fed. Cir. # 23-1078).

CBP's failure to seek clarification from the Commerce Department on whether importer Vanguard Trading Co.'s surface products were subject to the antidumping duty order on quartz surface products from China as part of an AD evasion case was "arbitrary and capricious," Vanguard told the Court of International Trade in a Dec. 4 complaint (Vanguard Trading Co. v. United States, CIT # 23-00253).

The government's request for a remand in an Enforce and Protect Act investigation to provide the parties with access to confidential business information is a "hollow" one since the parties have already gained access to this information via a judicial protective order at the Court of International Trade, plaintiff Phoenix Metal Co. said. Opposing the voluntary remand request from the U.S., Phoenix said the court should further explain CBP's decision to reject any information deemed to be "new factual information" (Phoenix Metal Co. v. United States, CIT # 23-00048).

The U.S. asked the U.S. Court of Appeals for the Federal Circuit for a voluntary remand on Nov. 15 in an Enforce and Protect Act case so it can consider the appellate court's decision in Royal Brush Manufacturing v. U.S. In that decision, the Federal Circuit said CBP violated an EAPA respondent's due process rights by not giving it access to the business confidential information in the proceeding (see 2307270038) (American Pacific Plywood v. United States, Fed. Cir. # 23-2321).

The U.S. Court of Appeals for the Federal Circuit's key decision in Royal Brush Manufacturing v. United States doesn't apply to an Enforce and Protect Act case brought by importer All One God Faith since the importer's entries are all liquidated, the U.S. told the appellate court. Submitting a letter to the court on Nov. 7, the government argued that the court "has not addressed its jurisdiction over cases where all entries were liquidated with antidumping duties and those liquidations became final and conclusive," adding that this fact distinguishes it from Royal Brush (All One God Faith v. United States, Fed. Cir. # 23-1078).