Litigation
Court Finds CBP May Not Deactivate Customs Broker’s Filer Code without Due Process
10/04/10 03:13 PM
On
October 4, 2010, the U.S. Court of International
Trade (CIT) issued an opinion in
Lizarraga Customs Broker v.
Bureau of Customs and Border
Protection, holding that
U.S. Customs and Border Protection (CBP) may not
deactivate customs broker’s filer code without
due process.
U.S. customs entries can be filed either manually or electronically through the Automated Broker Interface (ABI) system. According to CBP, currently 96% of all entries are filed electronically. In order to use ABI, the broker must have an active entry filer code and be approved for participation in the ABI system.
On October 21, 2008, the Director of Field Operations at the Otay Mesa Port Entry in San Diego wrote to the Assistant Commissioner of the Office of International Trade and requested that Guillermo Lizarraga’s entry filer code be deactivated for misuse. On November 3, 2008, the Assistant Commissioner made a final determination to indefinitely and immediately suspend Lizarraga’s entry filer code for misuse.
Customs did not provide Lizarraga with notice of its internal administrative review or an opportunity for a hearing, or solicit a written submission from him prior to its final determination, but on November 10, 2008, Customs notified Lizzaraga that, effective November 14, 2008, it would “immediately and indefinitely” suspend his entry filer code. The notice stated that the action was “necessary to prevent the misuse of the filer code in the conducting of customs business,” and that the suspension was to prevent Mr. Lizarraga from using his individual filer code to “facilitate smuggling narcotics” and to ensure that plaintiff’s “license, permit, name, and filer code are not used by persons who are not employed by Lizarraga and authorized to act for Lizarraga.”
Lizarraga argued that “suspending a broker’s entry filer code effectively puts that broker out of business because it is impossible to compete with other licensed brokers with active filer codes.”
Following CIT’s grant of Lizarraga’s motion for a temporary restraining order (TRO) and preliminary injunction seeking to enjoin Customs from suspending or deactivating plaintiff’s broker entry file code in the port of San Diego, CA, CBP filed the Confession of Judgment in plaintiff’s favor on April 23, 2010. The confession of judgment stated that CBP agreed not to suspend or deactivate Lizarraga’s entry filer code for any past fact or event. Customs stated in its oral argument that it would not seek to summarily suspend a broker’s entry filer code saying that “brokers are entitled to the [Administrative Procedure Act] (APA) if their entry filer code is deactivated, the procedural protections of the APA. So with respect to what occurred to Mr. Lizarraga in this instance, the Customs treatment of Mr. Lizarraga, it’s certain that that is not going to occur again.”
With respect to APA, CIT noted that Customs was referring to 5 U.S.C. §558(c), which states, in relevant part:
“Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given notice by the agency in writing of the facts or conduct which may warrant the action; and opportunity to demonstrate or achieve compliance with all lawful requirements.”
CIT stressed, however, that it was not finding that the due process afforded by 5 U.S.C. §588 would be legally sufficient in similar future cases.
U.S. customs entries can be filed either manually or electronically through the Automated Broker Interface (ABI) system. According to CBP, currently 96% of all entries are filed electronically. In order to use ABI, the broker must have an active entry filer code and be approved for participation in the ABI system.
On October 21, 2008, the Director of Field Operations at the Otay Mesa Port Entry in San Diego wrote to the Assistant Commissioner of the Office of International Trade and requested that Guillermo Lizarraga’s entry filer code be deactivated for misuse. On November 3, 2008, the Assistant Commissioner made a final determination to indefinitely and immediately suspend Lizarraga’s entry filer code for misuse.
Customs did not provide Lizarraga with notice of its internal administrative review or an opportunity for a hearing, or solicit a written submission from him prior to its final determination, but on November 10, 2008, Customs notified Lizzaraga that, effective November 14, 2008, it would “immediately and indefinitely” suspend his entry filer code. The notice stated that the action was “necessary to prevent the misuse of the filer code in the conducting of customs business,” and that the suspension was to prevent Mr. Lizarraga from using his individual filer code to “facilitate smuggling narcotics” and to ensure that plaintiff’s “license, permit, name, and filer code are not used by persons who are not employed by Lizarraga and authorized to act for Lizarraga.”
Lizarraga argued that “suspending a broker’s entry filer code effectively puts that broker out of business because it is impossible to compete with other licensed brokers with active filer codes.”
Following CIT’s grant of Lizarraga’s motion for a temporary restraining order (TRO) and preliminary injunction seeking to enjoin Customs from suspending or deactivating plaintiff’s broker entry file code in the port of San Diego, CA, CBP filed the Confession of Judgment in plaintiff’s favor on April 23, 2010. The confession of judgment stated that CBP agreed not to suspend or deactivate Lizarraga’s entry filer code for any past fact or event. Customs stated in its oral argument that it would not seek to summarily suspend a broker’s entry filer code saying that “brokers are entitled to the [Administrative Procedure Act] (APA) if their entry filer code is deactivated, the procedural protections of the APA. So with respect to what occurred to Mr. Lizarraga in this instance, the Customs treatment of Mr. Lizarraga, it’s certain that that is not going to occur again.”
With respect to APA, CIT noted that Customs was referring to 5 U.S.C. §558(c), which states, in relevant part:
“Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given notice by the agency in writing of the facts or conduct which may warrant the action; and opportunity to demonstrate or achieve compliance with all lawful requirements.”
CIT stressed, however, that it was not finding that the due process afforded by 5 U.S.C. §588 would be legally sufficient in similar future cases.
Appeals Court Denies Request to Review HTSUS Modifications By Presidential Proclamations
07/01/10 03:24 PM
On
June 18, 2010, U.S. Court of Appeals for the
Federal Circuit (“CAFC&rdquo
affirmed the Court of
International Trade’s
(“CIT&rdquo decision to deny request for
judicial review of the Harmonized Tariff
Schedule of the United States
(“HTSUS&rdquo in Michael Simon Design, Inc. et al.
v. U.S..
Three importers filed action in the CIT challenging modifications to the U.S. tariff schedule made by Presidential proclamation. In June 2004, the World Customs Organization (WCO) proposed several amendments to the international harmonized system, including changes to Chapter 95, which covers “toys, games and sports equipment; parts and accessories thereof.” Note 1(v) was added to Chapter 95 excluding apparel and other similar “articles having a utilitarian function” from duty-free classification under Chapter 95.
In response to comments that Note 1(v) conflicted with recent decisions of CAFC holding that certain utilitarian articles were entitled to duty-free classification as “festive articles,” the U.S. International Trade Commission (“ITC&rdquo proposed the creation of two
subheadings to maintain substantial rate
neutrality for two categories of festive
articles: (1) “utilitarian articles of a kind
used in the home in the performance of
specific religious or cultural ritual
celebrations for religious or cultural
holidays” and (2) “utilitarian articles in the
form of a three-dimensional representation of
a symbol or motif clearly associated with a
specific holiday in the United States.” Those
duty-free carve-outs did not encompass festive
apparel of the type imported by the
appellants. In April 2006, the ITC issued its
final report to the President recommending the
addition of Note 1(v) and the subheadings for
festive articles. Soon after, the President
issued Proclamation 8097 adopting all of the
Commission’s recommended modifications; they
became effective in February 2007.
The appellants filed separate but substantially identical complaints in the CIT challenging the modifications to the HTSUS. Appellants invoked the Administrative Procedure Act (APA) and alleged that they had been “adversely affected or aggrieved b the CIT’s decision to implement” the 2007 HTSUS modifications, and that the modifications were implemented in violation of law.
The CIT consolidated the cases and then dismissed the consolidated action explaining that when a party invokes the general-review provisions of the APA, and no other statute provides for a cause of action, the contested agency action must be “final” in order to be subject to judicial review. The CIT stated that the final action in this case was not the ITC’s recommendation but, rather, the President’s proclamation adopting the proposed HTSUS modifications. The CIT also stated that the President’s proclamation was unreviewable under the APA, because the President is not an “agency,” and his actions do not constitute “agency action” within the meaning of the APA. Finally, the CIT noted that because the President has “complete discretion” in deciding whether to adopt the ITC’s recommended modifications under 19 U.S.C. §3006, and because the ITC’s recommendations “carry no direct consequences,” the court lacked authority to review the lawfulness of the agency’s recommendations to the President.
After the case was dismissed, the Appellants filed an appeal with CAFC. On appeal, the CAFC stated that the APA, which the appellants invoked as the basis for their claim, authorizes suit by a party who is “adversely affected or aggrieved by agency action within the meaning of the relevant statute.” When, like in the case at hand, agency action is not “made reviewable by statute,” the agency action in question must be “final” in order to be subject to judicial review under the APA.”
The CAFC held that because the acts that the appellants complained of were either non-final or not agency actions, and because judicial review was precluded even outside the APA framework due to the discretionary nature of the President’s authority under §3006(a), the CIT’s decision to dismiss the actions was affirmed.
In support of its decision, the CAFC stated that judicial review of the ITC’s recommending modification of the HTSUS was unavailable because ITC actions were not “final” for purposes of the APA. Specifically, the ITC’s actions served as non-final recommendations that did not directly affect tariffs or bind importers. As such, they were not judicially reviewable under the APA.
Appellants argued that the ITC’s recommendations were “final” because the proposed modifications had the legal effect of overturning this court’s precedents regarding classification of festive articles. The CAFC held that the ITC’s recommendations did not alter the legal regime to which the decision maker was subject and did not have any binding legal effect on the relevant actions. The CAFC pointed out that the ITC’s report under 19 U.S.C. §3005 was purely advisory: it did not contain terms or conditions that circumscribed the President’s authority to act; it did not limited the President’s potential responses; and it did not directly modify the HTSUS. Under 19 U.S.C. §3006(a), the President was not bound by the ITC’s recommendations, so those recommendations did not have any impact on the President’s exercise of discretion. Because the President’s discretionary action was required to effect modifications to the HTSUS under §3006, the ITC’s report could not directly impact legal rights or alter any legal regime in such a way that it would have a legal effect on President’ s exercise of discretion.
Therefore, the CAFC held that the ITC’s recommendations under §3005 were not “final” and consequently not subject to judicial review under the APA. The CAFC also held that “the President’s actions [of proclaiming modifications to the HTSUS] [were] not reviewable under the APA because the President is not an “agency” within the meaning of the APA.”
In addition, CAFC stated that §3006 did not in any way limit the President’s discretion in a way that would render the President’s actions in this case judicially reviewable for exceeding his authority. On the contrary, “under section 3006(a), the President’s authority [was] not constrained in any way by the Commission’s recommendations. The statement in section 3006 that the President “may proclaim modifications, based on the recommendation by the Commission under section 3005 of this title, to the Harmonized Tariff Schedule” therefore does not restrict the President’s discretion or render the President’s actions judicially reviewable.”
The CAFC said that the only language in § 3006 that limited the President’s discretion to proclaim HTSUS modifications was the requirement that the President “determine that the modifications (1) are in conformity with the U.S. obligations under the Convention; and (2) do not run counter to the national economic interest of the United States.” In this case, the statute contained no language that expressly mandated substantial rate neutrality as a prerequisite to the President’s authority to proclaim HTSUS modifications. Nor did the statue require any independent predicate to President’s action. The President’s authority under section 3006 turns solely on his assessment of whether the ITC’s recommendations were in conformity with the U.S.’s obligations under the Convention and did not run counter to the nation’s economic interests. Because those determinations were committed to the President’s discretion and because the President’s compliance with pars. 1 and 2 of section 3006(a) was not at issue in this case, the President’s exercise of his discretion was not subject to judicial review.
affirmed the Court of
International Trade’s
(“CIT&rdquo decision to deny request for
judicial review of the Harmonized Tariff
Schedule of the United States
(“HTSUS&rdquo in Michael Simon Design, Inc. et al.
v. U.S..
Three importers filed action in the CIT challenging modifications to the U.S. tariff schedule made by Presidential proclamation. In June 2004, the World Customs Organization (WCO) proposed several amendments to the international harmonized system, including changes to Chapter 95, which covers “toys, games and sports equipment; parts and accessories thereof.” Note 1(v) was added to Chapter 95 excluding apparel and other similar “articles having a utilitarian function” from duty-free classification under Chapter 95.
In response to comments that Note 1(v) conflicted with recent decisions of CAFC holding that certain utilitarian articles were entitled to duty-free classification as “festive articles,” the U.S. International Trade Commission (“ITC&rdquo
proposed the creation of two
subheadings to maintain substantial rate
neutrality for two categories of festive
articles: (1) “utilitarian articles of a kind
used in the home in the performance of
specific religious or cultural ritual
celebrations for religious or cultural
holidays” and (2) “utilitarian articles in the
form of a three-dimensional representation of
a symbol or motif clearly associated with a
specific holiday in the United States.” Those
duty-free carve-outs did not encompass festive
apparel of the type imported by the
appellants. In April 2006, the ITC issued its
final report to the President recommending the
addition of Note 1(v) and the subheadings for
festive articles. Soon after, the President
issued Proclamation 8097 adopting all of the
Commission’s recommended modifications; they
became effective in February 2007.
The appellants filed separate but substantially identical complaints in the CIT challenging the modifications to the HTSUS. Appellants invoked the Administrative Procedure Act (APA) and alleged that they had been “adversely affected or aggrieved b the CIT’s decision to implement” the 2007 HTSUS modifications, and that the modifications were implemented in violation of law.
The CIT consolidated the cases and then dismissed the consolidated action explaining that when a party invokes the general-review provisions of the APA, and no other statute provides for a cause of action, the contested agency action must be “final” in order to be subject to judicial review. The CIT stated that the final action in this case was not the ITC’s recommendation but, rather, the President’s proclamation adopting the proposed HTSUS modifications. The CIT also stated that the President’s proclamation was unreviewable under the APA, because the President is not an “agency,” and his actions do not constitute “agency action” within the meaning of the APA. Finally, the CIT noted that because the President has “complete discretion” in deciding whether to adopt the ITC’s recommended modifications under 19 U.S.C. §3006, and because the ITC’s recommendations “carry no direct consequences,” the court lacked authority to review the lawfulness of the agency’s recommendations to the President.
After the case was dismissed, the Appellants filed an appeal with CAFC. On appeal, the CAFC stated that the APA, which the appellants invoked as the basis for their claim, authorizes suit by a party who is “adversely affected or aggrieved by agency action within the meaning of the relevant statute.” When, like in the case at hand, agency action is not “made reviewable by statute,” the agency action in question must be “final” in order to be subject to judicial review under the APA.”
The CAFC held that because the acts that the appellants complained of were either non-final or not agency actions, and because judicial review was precluded even outside the APA framework due to the discretionary nature of the President’s authority under §3006(a), the CIT’s decision to dismiss the actions was affirmed.
In support of its decision, the CAFC stated that judicial review of the ITC’s recommending modification of the HTSUS was unavailable because ITC actions were not “final” for purposes of the APA. Specifically, the ITC’s actions served as non-final recommendations that did not directly affect tariffs or bind importers. As such, they were not judicially reviewable under the APA.
Appellants argued that the ITC’s recommendations were “final” because the proposed modifications had the legal effect of overturning this court’s precedents regarding classification of festive articles. The CAFC held that the ITC’s recommendations did not alter the legal regime to which the decision maker was subject and did not have any binding legal effect on the relevant actions. The CAFC pointed out that the ITC’s report under 19 U.S.C. §3005 was purely advisory: it did not contain terms or conditions that circumscribed the President’s authority to act; it did not limited the President’s potential responses; and it did not directly modify the HTSUS. Under 19 U.S.C. §3006(a), the President was not bound by the ITC’s recommendations, so those recommendations did not have any impact on the President’s exercise of discretion. Because the President’s discretionary action was required to effect modifications to the HTSUS under §3006, the ITC’s report could not directly impact legal rights or alter any legal regime in such a way that it would have a legal effect on President’ s exercise of discretion.
Therefore, the CAFC held that the ITC’s recommendations under §3005 were not “final” and consequently not subject to judicial review under the APA. The CAFC also held that “the President’s actions [of proclaiming modifications to the HTSUS] [were] not reviewable under the APA because the President is not an “agency” within the meaning of the APA.”
In addition, CAFC stated that §3006 did not in any way limit the President’s discretion in a way that would render the President’s actions in this case judicially reviewable for exceeding his authority. On the contrary, “under section 3006(a), the President’s authority [was] not constrained in any way by the Commission’s recommendations. The statement in section 3006 that the President “may proclaim modifications, based on the recommendation by the Commission under section 3005 of this title, to the Harmonized Tariff Schedule” therefore does not restrict the President’s discretion or render the President’s actions judicially reviewable.”
The CAFC said that the only language in § 3006 that limited the President’s discretion to proclaim HTSUS modifications was the requirement that the President “determine that the modifications (1) are in conformity with the U.S. obligations under the Convention; and (2) do not run counter to the national economic interest of the United States.” In this case, the statute contained no language that expressly mandated substantial rate neutrality as a prerequisite to the President’s authority to proclaim HTSUS modifications. Nor did the statue require any independent predicate to President’s action. The President’s authority under section 3006 turns solely on his assessment of whether the ITC’s recommendations were in conformity with the U.S.’s obligations under the Convention and did not run counter to the nation’s economic interests. Because those determinations were committed to the President’s discretion and because the President’s compliance with pars. 1 and 2 of section 3006(a) was not at issue in this case, the President’s exercise of his discretion was not subject to judicial review.
U.S. Court of Appeals Dismisses Totes-Isotoner Equal Protection Claim
02/05/10 11:13 PM
On
February 5, 2010, the U.S. Court of Appeals for the
Federal Circuit (CAFC) issued its decision
in Totes-Isotoner Corporation v.
United States, upholding the
U.S. Court of International Trade (CIT) decision
to dismiss the complaint for failure to state a
claim.
Totes-Isotoner (Totes) appealed from a judgment of the CIT dismissing its complaint against the U.S. for failure to state a claim. Totes alleged that the Harmonized Tariff Schedule of the United States (HTSUS), by imposing different rates of duty on leather gloves “for men” and leather gloves “for other persons,” unconstitutionally denies the equal protection of the laws.
CAFC upheld the CIT’s judgment that (1) it had jurisdiction under 28 U.S.C. §1581(i); (2) Totes had standing to bring its claims; and (3) Totes’ equal protection claims were justiciable. On the merits, CAFC affirmed CIT’s decisions that Totes has failed to establish an equal protection claim due to its failure to plead facts sufficient to allege a claim of unconstitutional discrimination.
Specifically, Totes argued that the tariff provisions at issue unconstitutionally discriminate based on the sex of users of gloves. CAFC noted that because tariff rates applicable to different product classifications under the HTS are “the result of multilateral international trade negotiations and reflect reciprocal trade concessions and particularized trade preferences,” and that reasons behind different tariff rates depend on several factors, including country of origin, the type of product, the circumstances under which the products are imported, and the state of the domestic manufacturing industry. As a result, the Court reasoned that it was quite possible that the different tariff rates for men’s and other gloves reflected the fact that the gloves are different products the rates of which may be the result of trade concessions made by the U.S. in return for unrelated trade concessions. Accordingly, to prove an equal protection claim, Totes would have to establish that, “Congress intended to discriminate against men in the tariff schedules.” Absent such showing, CAFC refused to find discrimination based on disparate impact on purchasers alone.
In a concurring opinion, Judge Prost held that the proper reason to dismiss Totes’ claim was that the tariff classification was not facially discriminatory, pointing out that tariff rates at issue only imposed a burden on importers, and not on gender- or age-based categories of people. Absent a showing of disparate impact on consumers based on their sex, Justice Prost concluded that Totes’ failed to establish their equal protection claim.
Totes-Isotoner (Totes) appealed from a judgment of the CIT dismissing its complaint against the U.S. for failure to state a claim. Totes alleged that the Harmonized Tariff Schedule of the United States (HTSUS), by imposing different rates of duty on leather gloves “for men” and leather gloves “for other persons,” unconstitutionally denies the equal protection of the laws.
CAFC upheld the CIT’s judgment that (1) it had jurisdiction under 28 U.S.C. §1581(i); (2) Totes had standing to bring its claims; and (3) Totes’ equal protection claims were justiciable. On the merits, CAFC affirmed CIT’s decisions that Totes has failed to establish an equal protection claim due to its failure to plead facts sufficient to allege a claim of unconstitutional discrimination.
Specifically, Totes argued that the tariff provisions at issue unconstitutionally discriminate based on the sex of users of gloves. CAFC noted that because tariff rates applicable to different product classifications under the HTS are “the result of multilateral international trade negotiations and reflect reciprocal trade concessions and particularized trade preferences,” and that reasons behind different tariff rates depend on several factors, including country of origin, the type of product, the circumstances under which the products are imported, and the state of the domestic manufacturing industry. As a result, the Court reasoned that it was quite possible that the different tariff rates for men’s and other gloves reflected the fact that the gloves are different products the rates of which may be the result of trade concessions made by the U.S. in return for unrelated trade concessions. Accordingly, to prove an equal protection claim, Totes would have to establish that, “Congress intended to discriminate against men in the tariff schedules.” Absent such showing, CAFC refused to find discrimination based on disparate impact on purchasers alone.
In a concurring opinion, Judge Prost held that the proper reason to dismiss Totes’ claim was that the tariff classification was not facially discriminatory, pointing out that tariff rates at issue only imposed a burden on importers, and not on gender- or age-based categories of people. Absent a showing of disparate impact on consumers based on their sex, Justice Prost concluded that Totes’ failed to establish their equal protection claim.
Court Rules CBP Must Follow Regulations in Determining Broker's Exercise of Supervision
08/12/09 08:29 AM
On
August 11, 2009, the U.S. Court of Appeals for the
Federal Circuit (CAFC) issued a decision in
U.S. v. UPS Customhouse
Brokerage, Inc., remanding the
case to the U.S. Court of International Trade
(CIT) for further proceedings. The case involved
the Bureau of Customs and Border Protection’s
(Customs) action against UPS Customhouse
Brokerage, Inc. (UPS).
In 2000, Customs initiated eight penalty actions against UPS for misclassifying the goods on customs entry documents on behalf of its clients. The pre-penalty notices in all eight cases alleged that UPS failed to exercise responsible supervision and control required by 19 USC §1641 by repeatedly misclassifying parts under subheading HTSUS 8473.30.9000.
In 2004, Customs brought suit against UPS in the CIT seeking the unpaid portion of the penalties totaling $75,000. The CIT ruled in favor of Customs and ordered payment of penalties.
On appeal, CAFC affirmed CIT’s holding that UPS misclassified certain parts under subheading HTSUS 8473.30.9000.
On the issue of whether the broker exercised responsible supervision and control under 19 CFR §111.1, CAFC agreed with Customs that an agency has discretion in interpreting its own regulations, but pointed out that in this case, the Customs’ interpretation of 19 CFR §111.1 was inconsistent with the regulation itself. The Court stated:
As a result of Customs’ failure to consider all ten factors listed in 19 CFR §111.1 in evaluating the exercise of reasonable supervision and control, the Court vacated that portion of the CIT’s judgment and remanded the case for further proceedings.
In 2000, Customs initiated eight penalty actions against UPS for misclassifying the goods on customs entry documents on behalf of its clients. The pre-penalty notices in all eight cases alleged that UPS failed to exercise responsible supervision and control required by 19 USC §1641 by repeatedly misclassifying parts under subheading HTSUS 8473.30.9000.
In 2004, Customs brought suit against UPS in the CIT seeking the unpaid portion of the penalties totaling $75,000. The CIT ruled in favor of Customs and ordered payment of penalties.
On appeal, CAFC affirmed CIT’s holding that UPS misclassified certain parts under subheading HTSUS 8473.30.9000.
On the issue of whether the broker exercised responsible supervision and control under 19 CFR §111.1, CAFC agreed with Customs that an agency has discretion in interpreting its own regulations, but pointed out that in this case, the Customs’ interpretation of 19 CFR §111.1 was inconsistent with the regulation itself. The Court stated:
Customs, of course, has discretion in how it weighs each of the factors listed in §111.1. Additionally, the regulation makes clear that Customs is free to consider other factors in addition to those listed. However, this discretion does not absolve Customs of its obligation under the regulation to consider at the least the ten listed factors.
As a result of Customs’ failure to consider all ten factors listed in 19 CFR §111.1 in evaluating the exercise of reasonable supervision and control, the Court vacated that portion of the CIT’s judgment and remanded the case for further proceedings.
Supreme Court Hears First Ever Antidumping Cases
11/06/08 09:38 PM
On
November 4, 2008, the U.S. Supreme Court
heard oral arguments
in
the first antidumping cases ever granted
certiorari,
the
consolidated cases, United
States v. Eurodif S.A., et al.
(Docket No.
07-1059) and USEC, Inc.
v. Eurodif S.A. (Docket No.
07-1078). The cases involve appeals arising from
an antidumping petition filed in 2000 on imports
of low enriched uranium from countries
(including France).
In these cases, the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit overturned a decision by the Commerce Department that contracts for the enrichment of uranium between U.S. buyers and Eurodif, an enricher in France, were contracts for the sale of goods and subject to the antidumping petition. The courts held that the contracts were contracts for services and not subject to the antidumping duty laws.
In hearing this case, the Supreme Court will likely consider the extent to which courts must give deference to administrative agencies, such as the Commerce Department, under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The Court is expected to issue its opinion in these cases in Spring of 2009.
In these cases, the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit overturned a decision by the Commerce Department that contracts for the enrichment of uranium between U.S. buyers and Eurodif, an enricher in France, were contracts for the sale of goods and subject to the antidumping petition. The courts held that the contracts were contracts for services and not subject to the antidumping duty laws.
In hearing this case, the Supreme Court will likely consider the extent to which courts must give deference to administrative agencies, such as the Commerce Department, under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The Court is expected to issue its opinion in these cases in Spring of 2009.