CAFC Asks for More Briefing on Procedural Posture, Gov't Absence in AD/CVD Scope Case

The U.S. Court of Appeals for the Federal Circuit in a June 27 per curiam order required litigants in an antidumping and countervailing duty scope case to file supplemental briefs (Worldwide Door Components v. U.S., Fed. Cir. # 23-1532) (Columbia Aluminum Products v. U.S., Fed. Cir. # 23-1534).

The court said the briefs should answer two questions: (1) "Which of Commerce’s decisions does this court owe deference, given that Commerce’s decision comes after three remands and Commerce’s last decision was made under protest?" and (2) "What effect, if any, does the government’s decision not to appear or appeal in these consolidated cases have on our standard of review?"

Both questions reflect concerns some CAFC judges have shown in the past regarding the procedural posture of certain AD/CVD cases (see 2406040051). For instance, earlier this month, three CAFC judges spent the beginning of an oral argument session in a separate AD case sorting out which position the petitioner was advocating. The attorney in that case was seeking a reversion to Commerce's initial determination and not its remand decision made under protest.

In that same oral argument, Judge Todd Hughes asked arguing counsel what importance the government's absence in the case had for their claims.

The order came in a pair of cases from importers Worldwide Door Components and Columbia Aluminum Products contesting Commerce's inclusion of their door thresholds within the scope of the AD/CVD orders on aluminum extrusions from China (see 2308300031).