SEIA Tells CAFC It Used 'Right Tools' to Answer 'Wrong Question,' Urges Rehearing

The Solar Energy Industries Association argued that the U.S. Court of Appeals for the Federal Circuit used the "right tools" of statutory construction to answer the "wrong question" of agency deference in sustaining President Donald Trump's revocation of a tariff exclusion for bifacial solar panels. Filing a response on Feb. 28 to the government's opposition to SEIA's rehearing en banc motion, the industry group said that the U.S. didn't dispute, and "thus concedes," that the Maple Leaf deferential standard is "deeply out of step" with the law set by the Supreme Court, CAFC and other circuit courts (Solar Energy Industries Association v. United States, Fed. Cir. # 22-1392).

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). SEIA filed for rehearing, claiming that the panel improperly relied on the deferential standard from Maple Leaf. v. U.S. In response, the U.S. said that the court used the traditional tools of statutory construction in making its ruling (see 2402220042).

After getting leave from the court to file a response, SEIA said that insofar as the appellate court used the traditional statutory construction tools, it was only to ensure that the president didn't clearly misconstrue the law. The industry group said the U.S. failed to distinguish the Federal Circuit's 2021 ruling in Transpacific Steel v. U.S., in which the court sustained Trump's expansion of Section 232 duties beyond procedural time limits.

The government said Transpacific used traditional statutory construction tools to find the "correct meaning of the statute." Here, however, the panel used these tools "only to confirm that the President's construction was not 'clearly' wrong," thus using a different review standard than in Transpacific, the brief said.

In addition, SEIA claimed that the government didn't dispute that the case clearly presents an important question on "how much to defer to the President's statutory constructions." The U.S. actually admits that the panel ruled for the president "only because he offered a supposedly 'permissible' interpretation of the statute, and never discerned the 'correct' meaning for itself," the brief said. The panel's use of the Maple Leaf standard led the court to "abdicate its duty of determining whether the meaning of the statute is 'judicially ascertainable,'" SEIA said.

The industry group added that the application of the Maple Leaf standard itself was "dispositive." The Court of International Trade, using Maple Leaf, found the tariff exclusion revocation to be unlawful. "That alone casts doubt on whether the Panel would have reversed under the proper, de novo standard," SEIA claimed.