AD Petitioner Asks CAFC for Expedited Briefing in Appeal Over Injunction on Steel Nail AD Cash Deposits

Antidumping petitioner Mid Continent Steel & Wire asked the U.S. Court of Appeals for the Federal Circuit for an expedited briefing schedule in a case on the Commerce Department's use of adverse facts available due to a 16-minute late submission (Oman Fasteners v. U.S., Fed. Cir. # 23-1661).

While the case was at the Court of International Trade, Judge M. Miller Baker combined AD respondent Oman Fastener's bid for a preliminary injunction against cash deposits with a motion for judgment, granting both. Mid Continent said it needs the expedited briefing because there's a chance the legal issues surrounding Baker's consolidation will be moot before the appeal is decided.

The petitioner said the trade court's injunction "creates ongoing harm to Mid Continent because it improperly blocks the Congressionally-intended remedial effect of the final results of the underlying proceeding, and the trade laws generally," before the CIT case has been fully decided.

At the trade court, Baker ruled against Commerce's use of a total AFA rate of 154.33% on Oman Fasteners in the sixth administrative review of the AD order on steel nails from Oman, holding that the agency inadequately explained why the one late submission due to a filing difficulty was enough to conclude the exporter deserved the punitive rate (see 2302280040). At the time of the ruling, only Oman Fasteners' request for an injunction had been fully briefed, and not the motion for judgment that Baker also granted.

Now before the Federal Circuit, Mid Continent is jockeying for expedited briefing on the grounds that without it, the appeal will likely become moot. The appeal likely won't be decided before Commerce finishes its next review on Oman steel nails and sets a new cash deposit rate that supersedes the one imposed by CIT. Once that happens, the injunction will become irrelevant. The issue of "whether the Trade Court abused its discretion by consolidating the hearing for a preliminary injunction with a trial on the merits and whether the Trade Court made a reversible error in finding that the permanent injunction standard was met" won't be able to be decided, Mid Continent said.

"This cash deposit rate will supersede the 1.65 percent rate imposed by the Trade Court, thus mooting any challenge to the permanent injunction," Mid Continent said. "Given the typical life of an appeal before the Court, if the instant appeal is not expedited, it is highly likely if not certain that the case will not be decided until after this occurs, rendering moot this appeal and the important legal issues it raises."