CIT Denies Joint Stay Motion in EAPA Proceeding Pending CIT's Decision in Scope Referral Case

The Court of International in a Sept. 27 order denied a joint motion from plaintiffs in an Enforce and Protect Act case and the U.S. to stay proceedings pending the trade court's resolution of an action looking into whether the Commerce Department's relevant scope determination was legal. Judge Mark Barnett held that the claims in the EAPA case "are largely independent of Commerce's scope ruling."

In the joint motion, the parties had argued that a stay was warranted as it would promote judicial economy, spare resources by not requiring "unnecessary and protracted litigation," and not damage any parties (Far East American v. U.S., CIT #22-00213).

The consolidated case concerns CBP's finding that American Pacific Plywood, Far East American, Liberty Woods International and InterGlobal Forest evaded the antidumping and countervailing duty orders on hardwood plywood from China by transshipping the goods through Vietnam. The plaintiffs challenged CBP's alleged due process violations and its finding that all the imports were covered merchandise (see 2207200031).

In the case, the Vietnamese exporter of the plywood alleged to be covered by the orders, Vietnam Finewood Co., told CBP that it imported two-ply plywood from China, which the plaintiffs argue is not finished plywood but raw material used to make the finished hardwood plywood. In 2019, CBP said it was unable to find whether certain goods shipped from Finewood to the importers were covered merchandise, referring the question to Commerce. The agency found that Finewood's two-ply was subject to the orders. Finewood appealed this determination in a separate action at the trade court.

The plaintiffs and U.S. argued that resources can be spared by saving litigation of this question for Finewood's case. "For instance, if the Court determines in Finewood III that Commerce’s scope determination was unlawful, Plaintiffs and Consolidated Plaintiffs may very well forego [sic] the issue whether record evidence sufficiently distinguishes plywood incorporating two-ply and plywood incorporating only single sheets of veneers, or Defendant may seek a voluntary remand of CBP’s EAPA ... decision," the brief said. Further, the plaintiffs said the stay would not damage any of the parties, since the entries at issue are all liquidated. "No parties will suffer harm in the instant case from maintaining the status quo," the brief said.

Barnett found that the scope determination and the plaintiffs' claims are, for the most part, independent. "Thus, entering the stay would delay resolution of Plaintiffs’ and Consolidated Plaintiffs’ EAPA claims for years if Commerce’s scope determination is upheld," the judge said. "The Parties further indicate that certain claims might survive a reversal of Commerce’s scope ruling. The Parties have not identified any 'pressing need' for a stay that counterbalances this potential for unnecessary delay."