CIT Denies US Remand Request in Light of 'Royal Brush' Decision in EAPA Case

The Court of International Trade on Jan. 23 denied a U.S. request for a voluntary remand to reconsider due process issues in an Enforce and Protect Act case involving cast iron soil pipe imports by Phoenix Metal, in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S.

Judge Gary Katzmann said there was "too attenuated a link between" the purpose of the requested remand, which was to reconsider providing the parties with access to the confidential business information, and the "validity of the final agency action" regarding evasion of the antidumping and countervailing duty orders. Katzman also rejected CBP's request for a remand so the agency could "further explain its decision to reject any information that Customs deemed to be 'new factual information' during the investigation."

The Royal Brush decision said that CBP violated an EAPA respondent's due process rights by not providing it access to the confidential business information in the case (see 2307270038).

The judge noted that the requested remand would not include the reconsideration of the underlying evasion decision itself. The government instead will reconsider the "actions it took with respect to procedural steps leading up to" the evasion decision. That link is not strong enough to warrant a remand and is "further attenuated by the specification that Customs's reconsideration would merely comprise the act of" giving the parties access to confidential information, Katzmann said.

The request doesn't clear any of the legal standards needed for a voluntary remand, the court held. The proposal does not justify granting a remand bid based on "intervening events," nor does it clear the Federal Circuit's "substantial and legitimate concern" standard for remand requests, which are issued without intervening events. The "practical impact" of disclosing the confidential information is "unclear," since all parties now have access to the information due to the judicial protective order issued in the case. In addition, if a court remands the evasion decision itself, CBP can grant access to the information during that remand proceeding, Katzmann noted.

The U.S. also requested that the court stay briefing on Phoenix's motion for judgment as part of its remand request. In response, Katmann pushed the deadline for the government's reply brief back two weeks.

(Phoenix Metal Co. v. United States, Slip Op. 24-7, CIT # 23-00048, dated 01/23/24; Judge: Gary Katzmann; Attorneys: Gregory Menegaz of deKieffer & Horgan for plaintiff Phoenix Metal Co.; Liridona Sinani for defendant U.S. government; Roger Schagrin of Schagrin Associates for defendant-intervenor Cast Iron Soil Pipe Institute)