CIT Again Strikes Down Section 232 Expansion to Steel 'Derivatives'; Judge Baker Dissents

The Court of International Trade found again that President Donald Trump violated procedural time limits when expanding Section 232 tariffs to steel and aluminum “derivatives,” in a June 10 decision. Citing CIT's prior case on the topic, PrimeSource Building Products Inc. v. United States (see 2104050049), Judges Jennifer Choe-Groves and Timothy Stanceu awarded refunds for tariffs paid to steel fastener importers Oman Fasteners, Huttig Building Products and Huttig Inc. In Oman Fasteners, LLC. et al. v. United States, the court ruled that the president illegally announced the tariff expansion after the 105-day deadline laid out by Section 232, but denied the plaintiff's other two claims, without prejudice, on the procedural violations of the tariff expansion. The panel's third member, Judge Miller Baker, concurred in part and dissented in part.

The plaintiffs initiated their challenge following Trump's decision in January 2020 to expand the Section 232 tariffs to cover steel derivatives. In PrimeSource, which mirrors Oman's case, PrimeSource successfully argued that the tariffs were announced well after the 105-day deadline for tariff action following the Commerce Department's report that led to the initial imposition of Section 232 steel tariffs in 2018.

Stanceu and Choe-Groves then gave the Department of Justice the chance to make additional arguments on whether the president truly violated the time limit. DOJ declined to submit additional arguments in a March 5 Joint Status Report to the court, guaranteeing that the judges would uphold their earlier findings that Trump exceeded his authority when he made his decision after the 105-day mark had passed (see 2103100010). In the status report, DOJ held that all procedural requirements were met by the initial 2018 Commerce report. DOJ said in a recent filing that it filed for an appeal in the PrimeSource case on June 4.

In his dissent in Oman, Baker criticized the majority for denying the other two claims simply to award the U.S. Court of Appeals for the Federal Circuit jurisdiction for the appeal. Accusing the other two judges of “'manufacturing' finality” for the judgment, Baker said that finality doesn't require the court to also put all the plaintiffs' other theories to bed on the same fundamental claim for relief. “But where, as here, a plaintiff asserts multiple theories in support of only a single claim for relief and the district court or the CIT grants all the requested relief based on only one of the plaintiff’s asserted theories, attaining finality does not require the court to also adjudicate the plaintiff’s alternative theories for recovery on the same claim,” Baker said. “I see no practical purpose in construing the finality requirement to require 'the plaintiff to fire additional bullets into the corpse of a defendant he has already killed.'”