CAFC Grants US Remand Motion in EAPA Case on Chinese Plywood to Discuss 'Royal Brush'

The U.S. Court of Appeals for the Federal Circuit on Jan. 26 granted the U.S. request for a voluntary remand in an Enforce and Protect Act case led by American Pacific Plywood to address the Federal Circuit's holding in Royal Brush Manufacturing v. U.S. In that decision, the appellate court said CBP violated an EAPA respondent's due process rights by not providing it with access to confidential business information in the investigation (American Pacific Plywood v. U.S., Fed. Cir. # 23-2321).

The importers argued in their case that CBP similarly violated their due process rights in the EAPA case, which ultimately found that the companies evaded the antidumping and countervailing duty orders on hardwood plywood from China. In its voluntary remand motion, the government said CBP "acknowledges its treatment of confidential business information during the underlying EAPA investigation was inconsistent with this Court’s later holding in Royal Brush" (see 2311150046).

The U.S. asked for the case to be returned to the Court of International Trade with instructions for a remand to CBP to provide the parties with access to the confidential information. The Federal Circuit agreed.

The remand order comes after a CIT opinion in a different EAPA case in which the court rejected a similar voluntary remand motion because it wouldn't affect the underlying evasion determination being challenged (see 2401230072). The court said a separate remand proceeding wasn't needed solely to address the due process concerns, saying the parties all had access to the confidential information in the case through a judicial protective order. In that case, the EAPA respondent opposed the remand motion.