PrimeSource Defends Stay Bid Pending SCOTUS Appeal of Section 232 'Derivatives' Case

The Court of International Trade isn't "statutorily barred from granting" importer PrimeSource Building Products' request for a court order stopping CBP from collecting Section 232 steel and aluminum duties from the importer, PrimeSource said in a Sept. 12 reply brief. Addressing the government's claim that the trade court lacks the authority to grant the partial stay, the importer said the request, which seeks a stay pending the U.S. Supreme Court's resolution of the case challenging the expansion of Section 232 duties to cover "derivative" products, seeks relief from CIT and not the appellate court (PrimeSource Building Products v. U.S., CIT # 20-00032).

The government argued that a stay can be granted only by a judge of the court rendering the judgment, adding that because the U.S. Court of Appeals for the Federal Circuit rendered the judgment being appealed to the high court, the stay at the trade court should be denied (see 2308140019). PrimeSource said that while the U.S. is correct to say the appeal is of the Federal Circuit's opinion, the stay motion "seeks relief from [CIT's] judgment."

CIT ordered that entries affected by this case should be liquidated in accordance with the Federal Circuit's ruling, which found that President Donald Trump's expansion of the duties to include derivative goods beyond procedural time limits was lawful. That decision was petitioned to the Supreme Court. PrimeSource said the high court could settle ambiguity in statutes delegating "vast legislative power to the Executive in favor of restraining the delegation" (see 2307270028).

The importer recognized that CIT "may lack authority to order a full stay as such relief may conflict with the Federal Circuit's mandate" but noted its proposed relief "specifies that it would pay duties on its future entries following this Court’s judgment in slip opinion 23-101 such that the Federal Circuit’s mandate can go into full effect."

PrimeSource also argued that its stay request "does not conflict with the Federal Circuit's mandate." The importer said the appellate court's mandate "in no way dictated the pace at which this Court must order the collection of duties on PrimeSource’s entries." The irreparable harm the importer faces sets its case apart from cases at other circuits, where the courts have denied such stay motions, the brief added. Other circuits' opinions are merely "persuasive authority, not binding precedent."