The Court of International Trade in a confidential Dec. 20 opinion upheld the Commerce Department's remand results in a case on the 2017-18 administrative review of the antidumping duty order on crystalline silicon photovoltaic cells, whether or not assembled into modules, from China. In the remand results, Commerce dropped its use of partial adverse facts available over unreported factors of production data, reverting to neutral facts available, and changed how it values silver paste using Malaysian surrogate data (see 2207070047). However, the agency stuck by positions previously sent back by the trade court on how to value backsheets and ethyl vinyl acetate using surrogate data. In a letter to the litigants, Judge Claire Kelly said she wishes to issue a public version of the opinion on "or shortly after" Jan. 4 (Risen Energy Co. v. United States, CIT Consol. # 20-03743).
The Commerce Department illegally hit antidumping respondent Unicatch Industrial Co. with adverse facts available over the fact that the company did not submit a complete cost reconciliation, Unicatch and other appellants argued in a Dec. 19 opening brief at the U.S. Court of Appeals for the Federal Circuit. Unicatch, along with TC International, Hor Liang Industrial Corp. and Romp Coil Nails Industries, argued that all the data needed to complete the cost reconciliation was on the record, meaning the respondent "could have easily completed the reconciliation in a manner required if it had realized that Commerce was not satisfied with its response" (Pro-Team Coil Nail Enterprise v. United States, Fed. Cir. # 22-2241).
The Commerce Department cannot set the all-others rate in an antidumping duty review by taking a simple average of a de minimis and an adverse facts available rate, the Court of International Trade ruled in a Dec. 21 opinion. Sending the case back to Commerce for the fifth time, Judge Jennifer Choe-Groves cited a key U.S. Court of Appeals for the Federal Circuit ruling that made the same determination. The judge said that the court's rules "require the just and speedy determination of every action and proceeding," so the agency should refrain from "submitting the same unreasonable-as-applied, punitive all-others separate rate."
The Court of International Trade in a Dec. 21 opinion denied U.S. Steel Corp.'s motion to intervene in a case brought by Seneca Foods Corp. on the Commerce Department's denial of Section 232 exclusion requests. The trade court cited the U.S. Court of Appeals for the Federal Circuit's decision in California Steel Industries v. U.S., in which the appellate court denied U.S. Steel the right to intervene in a different Section 232 exclusion denial challenge. Judge Gary Katzmann ruled that this precedent establishes that the steel maker doesn't have the right to intervene under the trade court's rules.
Congress explicitly gave district courts jurisdiction over the intended U.S. prosecution of a sovereign-owned bank for evading U.S. sanctions, the government argued in a brief vying for jurisdiction for the case at the Supreme Court. The U.S. said that nothing in the common law or the Foreign Sovereign Immunities Act prevents Turkish state-owned bank Halkbank "from facing criminal consequences for violating U.S. law." Allowing the "novel claim of immunity" to thwart the criminal prosecution of the bank "would be unprecedented" and is unsupported by the FSIA, since its "text, structure, and history demonstrate that it does not apply to criminal cases," the brief said.
The Court of International Trade should dismiss a case from importer Southern Cross Seafood involving the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) for lack of jurisdiction, the U.S. argued in a Dec. 19 motion. Measures involving the CCAMLR belong exclusively at district courts and the statute "could not be more clear," the brief said. The case challenges the National Marine Fisheries Service's decision to deny Southern Cross' application for preapproval to import Chilean sea bass (Southern Cross Seafoods v. United States, CIT # 22-00299).
The Court of International Trade in a Dec. 20 opinion denied an injunction bid pending appeal from certain plaintiffs in an attorney conflict-of interest suit. After recently rejecting the plaintiffs' motion for a preliminary injunction for lack of subject matter jurisdiction, Judge Gary Katzmann this time rejected the injunction motion pending appeal since the appeal to the U.S. Court of Appeals for the Federal Circuit "has not yet been noticed," but even if it had, the injunction "is unwarranted." Katzmann said that the plaintiffs fail to both show a "strong showing of success on the merits" and prove that they will suffer irreparable harm without the injunction.
The following lawsuits were recently filed at the Court of International Trade:
The Court of International Trade in a pair of Dec. 16 opinions upheld the Commerce Department's decisions on remand to exclude importers Worldwide Door Components' and Columbia Aluminum Products' door thresholds from the scope of the antidumping and countervailing duty orders on aluminum extrusions from China. After previously remanding the decision for not being submitted in a form that was judicially reviewable, Judge Timothy Stanceu said that this time around the agency has made a scope decision "in a form the court is able to sustain."
The Court of International Trade on Dec. 19 ruled that the Commerce Department improperly excluded certain solar cell sales from consolidated antidumping duty respondent Inventec Solar Energy Corp.'s (ISEC's) dumping margin based on its finding that ISEC did not have any actual or constructive knowledge that its goods would ultimately end up in the United States. Judge Leo Gordon said that given "the totality of the record, the court cannot sustain as reasonable" the finding that ISEC did not have actual knowledge of the solar cells' destination.