US Asks to Double Word Count to Defend Solar Panel Tariff Exclusion Withdrawal

The U.S. Court of Appeals for the Federal Circuit should allow the U.S. to double its word count in its reply brief in a case on President Donald Trump's move to revoke a tariff exclusion for bifacial solar panels, the U.S. argued in a Sept. 15 brief at the appellate court. The government argued that good cause exists for their motion since it must reply to the issue of presidential authority raised by the appellees along with several alternative problems, and because the importance of the issues in question warrant an enlargement of the word count (Solar Energy Industries Association v. United States, Fed. Cir. #22-1392).

The plaintiff-appellees originally launched the case at CIT to challenge the withdrawal of the exclusion on bifacial solar panels from the safeguard duties on imported crystalline silicon photovoltaic solar panels. Section 204 of the Trade Act of 1974 says the president can, on his or her own authority, "reduce, modify, or terminate" previous safeguard duties after finding the industry has made a "positive adjustment to import competition."

The case hinged on the definition of "modify," with the plaintiffs successfully arguing that it encompasses only trade liberalizing action and the government pushing for a broader definition. The appellees said it defies "logic and congressional intent" to bolster trade restrictions when the domestic industry has made a "positive adjustment." The trade court agreed, ruling that interpreting the statute to include both trade liberalizing and trade restricting modifications would run counter to the "detailed statutory scheme" (see 2111160032).

The U.S. appealed the decision to the Federal Circuit, filing its opening brief in May (see 2205120060). In it, DOJ said that, despite the focus on the statutory scheme, the trade court's interpretation of the law conflicts with "many aspects of the safeguard statute" that show that Congress did not restrict the president's ability to make limited adjustments to a safeguard measure. The appellants then filed their reply, and were joined by an amicus brief. Finding 7,000 words inadequate to form an adequate reply, the U.S. asked the court to enlarge its word limit to 14,000 words.

The appellees opposed the motion, telling DOJ lawyers that it does not oppose an enlargement to 11,000 since that is more than half of the word count of all of the appellees' reply briefs. The U.S. said it disagrees with this characterization of the record since this does not address the 6,000 word amicus brief that makes further arguments in the case. Since the appellees' central argument over presidential authority must be addressed along with multiple alternative arguments, good cause exists to enlarge the word count to 14,000 words, the U.S. said.

"These grounds are new for purposes of the appeal, and stem from distinct legal claims on which the trial court ruled against the appellees in the proceedings below," the brief said. "Hence, the posture of our reply brief here is broadly akin to that of a party filing its reply and response in the context of a cross-appeal, for which the Court’s rules provide that a party may file a brief of up to 14,000 total words." The U.S. also said that it needs more words to address the sheer volume of the materials filed by the appellees and their amici. Lastly, the importance of the issues warrants granting the request since the case concerns "the legality of a Presidential proclamation, and more broadly the scope of the President’s authority to provide relief to a domestic industry suffering serious injury or the threat thereof from import competition," the brief said.

The U.S.'s reply is currently due on Sept. 22. In response to the motion for enlargement, the court stayed the briefing schedule pending resolution of the enlargement matter.