President Joe Biden nominated Judge Leonard Stark of the U.S. District Court for the District of Delaware to serve on the U.S. Court of Appeals for the Federal Circuit. Stark, who served as the Delaware District's chief judge 2014 to 2021, would replace current Federal Circuit Judge Kathleen O'Malley, who announced that she would retire next March. Stark would be the president's second appointment to the Federal Circuit, after the Senate confirmed Tiffany Cunningham to the appellate court in July. Before joining the Delaware District Court in 2010, Stark was a U.S. magistrate judge for the District of Delaware, and before that, an assistant U.S. attorney for the District of Delaware.
The U.S. Court of Appeals for the Federal Circuit should reverse a Court of International Trade decision that found that CBP's "indirect method" for weighing importer New Image Global's tobacco wraps that included the weight of additives was legally and scientifically valid, New Image argued in its Nov. 1 opening brief. The Federal Circuit should remand the case to instruct the trade court that the original test for weighing the tobacco wraps was valid, the importer said.
The Court of International Trade erred when it took "bypass" liquidations into its consideration of treatment previously afforded importer Kent International's children's bicycle seats, the U.S. Court of Appeals for the Federal Circuit said in a Nov. 3 opinion. Remanding the issue to the trade court, a three-judge panel at the Federal Circuit, however, upheld CIT's determination that there was no de facto "established and uniform practice" (EUP) regarding the customs classification of kids' bike seats.
The Commerce Department reverted to its initial decision in an antidumping duty investigation to adjust a Turkish pipe exporter's post-sale price by only one-third of a late delivery penalty in Nov. 2 remand results filed at the Court of International Trade. Submitting the remand following a mandate from the U.S. Court of Appeals for the Federal Circuit reversing a CIT opinion, Commerce also dropped its particular market situation adjustment to the respondent Borusan Mannesmann Boru Sanayi ve Ticaret's costs for the sales-below-cost test (Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. U.S., CIT Consol. #19-00056).
The Court of Appeals for the Federal Circuit remanded in part and sustained in part the Court of International Trade's opinion in a Nov. 3 decision amid a customs battle over bicycle seats. The Federal Circuit found the trade court erred in approving CBP's use of "bypass entries" to show the established classification treatment of the bicycle seat imports. However, the three-judge panel at the Federal Circuit upheld CIT's finding of no de facto established and uniform practice. The plaintiff, Kent International, had argued that such a practice existed based on CBP's liquidation of its entries, and the entries of third parties, under its preferred Harmonized Tariff Schedule subheading.
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The Court of International Trade ordered an in-person oral argument to take place on Nov. 4 to settle a matter in which the Department of Justice alleged that the plaintiff failed to obtain its consent before filing for a statutory injunction against the liquidation of its entries. In a brief on the injunction motion, DOJ said that counsel for Cheng Shin Rubber -- led by Jeffrey Winton of Winton & Chapman -- completely misrepresented its position, declaring that it had the government's consent for the injunction, when it didn't (see 2110250052).
The Commerce Department did not reasonably find that Chinese exporter Zhejiang Machinery Import & Export Corp. failed to rebut the presumption of de facto government control, barring the company from receiving a separate antidumping rate, the exporter argued to the U.S. Court of Appeals for the Federal Circuit in its Oct. 26 opening brief. Contesting the Court of International Trade's June ruling upholding Commerce's position that ZMC did not rebut this presumption, ZMC argued that Commerce was unwilling to address arguments presented by it that explained that it wasn't possible for the Chinese government to control ZMC through the labor union that owns most of its shares. This established an "irrebuttable presumption that cannot be rebutted by any factual or legal arguments," contrary to law, the brief said.
The entire U.S. Court of Appeals for the Federal Circuit should hear a case over whether tapered roller bearing importer Wanxiang America Corp. has jurisdiction to challenge guidance issued from the Commerce Department to CBP on the assessment of antidumping duties, the importer argued in an Oct. 18 petition at the Federal Circuit. Arguing that a panel at the appellate court's decision will force importers subject to customs penalty claims into a "Hobbesian choice," that will "eviscerate their right to judicial review," the entire court should reverse the panel's ruling, WAC argued (Wanxiang America Corporation v. United States, Fed. Cir. #20-1044).
The U.S. Court of Appeals for the Federal Circuit issued its mandate on Oct. 14 in a case affirming the Court of International Trade's rejection of excise tax drawback regulations. The Aug. 23 opinion held that CBP cannot limit the amount of drawback that can be claimed on excise taxes, finding that the CBP regulation defied the "clear intent of Congress" (see 2108230036). The decision struck down a 2018 rule that was issued as part of a broader overhaul of drawback regulations following the Trade Facilitation and Trade Enforcement Act of 2015 (The National Association of Manufacturers, et al. v. Department of the Treasury, et al., CIT #19-00053).