CAFC Rejects Kazakh Exporter's Bid to Add New Arguments in Amended Opening Brief
The U.S. Court of Appeals for the Federal Circuit in a June 30 order accepted the amended opening brief and addendum filed by Kazakh exporter Tau-Ken Temir in a case on the Commerce Department's use of adverse facts available due to missed filing deadlines in an antidumping duty review. In submitting its amended brief, TKT submitted a version of its original opening brief with corrections sought by the clerk of the court and also a version with these corrections plus corrections additionally requested by the exporter. The appellate court accepted only the first form of these submissions (Tau-Ken Temir v. U.S., Fed. Cir. # 22-2204).
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The U.S. and petitioners Globe Specialty Metals and Mississippi Silicon did not oppose the correction of technical issues in the corrected briefs but did oppose the exporter's "other changes." Judge Alan Lourie sided with the government and the petitioners in rejecting the TKS bid to add new claims to its brief.
The government said TKT's bid to correct its opening brief, the fourth of its kind, was an attempt to shoehorn arguments on the agency's new regulations concerning untimely submitted files and violates the limitations on raising new authorities (see 2305150055). If new authorities arise after a brief has been filed, the litigant must alert the court via a letter, the government said. TKT tried instead to insert a new argument in its corrections to its opening brief, sidestepping these limitations, "presenting a continually moving target" and affecting the government's ability to respond, the government said.