Importer to Appeal CIT's Rejection of Bid for Attorney's Fees in EAPA Suit

Importer Diamond Tools Technology will appeal the Court of International Trade's rejection of the company's request for attorney's fees in its challenge to CBP's determination that Diamond Tools Technology evaded the antidumping duty order on diamond sawblades from China. In March, Judge Timothy Reif said that since the case offered two issues of "first impression," the government's position was "substantially justified" for purposes of not awarding attorney's fees to the importer (Diamond Tools Technology v. United States, CIT # 20-00060).

The two novel issues covered whether CBP is bound by the timeline created by the Commerce Department's start of a circumvention inquiry after referring a "covered merchandise" matter to Commerce and whether Diamond Tools Technology made a "material and false statement or act, or material omission" within the meaning of the Enforce and Protect Act.

The court said on the first issue the interaction between EAPA investigations and scope inquiries was a matter of first impression, and on the second question, CBP interpreted the term "false" in EAPA to mean "incorrect," which isn't inconsistent with prior CBP rulings in other instances, the court said (see 2307310021). CBP reversed its evasion finding on remand, after which the importer sought attorney's fees, claiming that the government's case wasn't substantially justified. The trade court rejected this claim and said where the issue is a novel one with little precedent, "courts have been reluctant to find the government's position was not substantially justified."