AD Petitioner Says CIT Judge Abused Discretion in Combining Motion for PI With Motion for Judgment

The Court of International Trade abused its discretion by combining a motion for a preliminary injunction against antidumping duty cash deposits with a motion for judgment on the agency record (see 2302280040), AD petitioner Mid Continent Steel & Wire argued in an opening brief at the U.S. Court of Appeals for the Federal Circuit. Judge M. Miller Baker committed "multiple legal and factual errors" in his opinion, issuing the judgment on a record developed via "limited discovery" and displaying multiple errors on the merits, the petitioner claimed (Oman Fasteners v. United States, Fed. Cir. # 23-1661).

In all, Mid Continent pointed to nine alleged mistakes committed by Baker. The petitioner said that the court relied on the preamble to an "inapplicable regulation" to find that the Commerce Department abused its discretion in rejecting a minutes-late submission leading to the use of adverse facts available, then elevated that preamble "to have greater legal force than the regulations themselves." The court also ignored binding precedent giving the agency broad discretion to enforce its deadlines and invalidated Commerce's authority to require a party to follow the agency's regulations, Mid Continent said.

Mid Continent also criticized the court's reliance on a record that consisted of factual information primarily presented by plaintiff and exporter Oman Fasteners after briefing on the motion for a PI was finished. Mid Continent opposed the bid to add post-briefing evidence, but the opposition was never addressed by the court. Baker also gave no chance to submit briefs on the new evidence, Mid Continent said.

Baker held that the public interest would be served by the court's ruling since it found that the government has no interest in collecting cash deposits at the 154.33% AFA rate. Mid Continent said this determination was "clearly erroneous" since, as the Federal Circuit has held, "Commerce’s application of trade laws in a uniform and fair fashion falls within the public interest. The Trade Court entirely premised its public interest determination on the fact that it ruled in OF’s favor on the merits. Yet the underlying merits decision is fatally flawed."

The trade court also held that remedies available at law were not enough to compensate Oman Fasteners for the supposed irreparable harm suffered from the AFA rate. Mid Continent told the appellate court that this was a "clear error in judgment and ignores information and argument that Mid Continent presented," since Oman Fasteners has malpractice insurance to ward against errors from its counsel. Also, the Supreme Court ruled in Sampson v. Murray that financial loss alone is not irreparable harm, yet the court "failed to consider, let alone address, this point," Mid Continent said.

Oman Fasteners launched its suit to contest the AFA rate it was assigned because it submitted its supplemental Section C questionnaire response 16 minutes late. The company said that the lofty AD cash deposits would put it out of business. Baker issued a scathing opinion in response, taking the agency to task over its "draconian" penalty. Mid Continent subsequently appealed the decision as an abuse of judicial discretion.