SEIA Asks CAFC to Let It File 4-Page Response to US Opposition to Rehearing Bid

The Solar Energy Industries Association asked the U.S. Court of Appeals for the Federal Circuit on Feb. 23 for leave to file a "short reply in support of their pending petition for rehearing en banc" in a suit on President Donald Trump's revocation of a tariff exclusion for bifacial solar panels (Solar Energy Industries Association v. United States, Fed. Cir. # 22-1392).

SEIA said there is "good cause" for allowing the filing of a four-page reply since it will "assist the Court by demonstrating the strong case for en banc review" and respond to "new issues raised for the first time" in the government's response. The solar panel industry group said the U.S. "either concedes, or fails to rebut, essential reasons for the Court to rehear this case en banc to reevaluate the deferential Maple Leaf standard of review."

The U.S. made no attempt to reconcile this review standard with decisions from the Supreme Court, Federal Circuit or other circuits, nor did the government show that the issue is "undeserving of en banc consideration" regarding the "separation-of-powers concerns." Instead, the government invoked an "inapposite substantive canon of interpretation for the first time" and speculates that the court would have reached the same conclusion under this standard.

A three-judge panel in the case ruled in November that Trump didn't clearly misconstrue the statute when revoking the tariff exclusion (see 2311130031). The court said the statute under which the president made the revocation allows for trade-restricting modifications and not just trade-liberalizing ones.

SEIA filed for rehearing, claiming that the decision freed the court of its obligation to say what the law is and used an improper deferential standard to the executive branch established under Maple Leaf (see 2401120034). The U.S. said in response that the court used the traditional tools of statutory construction in making its ruling (see 2402220042).