Petition for Writ of Certiorari — Oman Fasteners, LLC, Petitioner v. United States, et al.

APPENDIX

TABLE OF CONTENTS

Appendix A, Court of Appeals decision

(February 7, 2023) ..................................................1a

Appendix B, Court of International Trade

decision granting stay pending appeal

(October 15, 2021) .................................................17a

Appendix C, Court of International Trade

decision granting summary judgment in part

to plaintiffs (June 10, 2021) .................................35a

Appendix D, Court of Appeals order denying

rehearing en banc (June 22, 2023)......................53a

Appendix E, Statutory Appendix..............................56a

1a

APPENDIX A

In the

United States Court of Appeals

for the Federal Circuit

PRIMESOURCE BUILDING PRODUCTS, INC.,

Plaintiff-Appellee

v.

UNITED STATES, JOSEPH R. BIDEN, JR.,

PRESIDENT OF THE UNITED STATES, GINA M.

RAIMONDO, SECRETARY OF COMMERCE,

CHRISTOPHER MAGNUS, COMMISSIONER OF

U.S. CUSTOMS AND BORDER PROTECTION,

UNITED STATES CUSTOMS AND BORDER

PROTECTION, DEPARTMENT OF COMMERCE,

Defendants-Appellants

2021-2066

Appeal from the United States Court of International

Trade in No. 1:20-cv-00032-TCS-JCG-MMB, Senior

Judge Timothy C. Stanceu, Judge Jennifer Choe-Groves,

Judge M. Miller Baker

OMAN FASTENERS, LLC, HUTTIG BUILDING

PRODUCTS, INC., HUTTIG, INC.,

Plaintiffs-Appellees

v.

2a

UNITED STATES, JOSEPH R. BIDEN, JR.,

PRESIDENT OF THE UNITED STATES, UNITED

STATES CUSTOMS AND BORDER PROTECTION,

CHRISTOPHER MAGNUS, COMMISSIONER OF

U.S. CUSTOMS AND BORDER PROTECTION,

DEPARTMENT OF COMMERCE, GINA M.

RAIMONDO, SECRETARY OF COMMERCE,

Defendants-Appellants

2021-2252

Appeal from the United States Court of International

Trade in Nos. 1:20-cv-00037-TCS-JCG-MMB, 1:20-cv00045-TCS-JCG-MMB, Senior Judge Timothy C. Stanceu, Judge Jennifer Choe-Groves, Judge M. Miller Baker.

Decided: February 7, 2023

JEFFREY S. GRIMSON, Mowry & Grimson, PLLC,

Washington, DC, argued for plaintiff-appellee PrimeSource Building Products, Inc. Also represented by

BRYAN PATRICK CENKO , JILL CRAMER, K RISTIN HEIM

MOWRY, SARAH WYSS.

ANDREW CARIDAS, Perkins Coie, LLP, Washington,

DC, argued for plaintiffs-appellees Oman Fasteners,

LLC, Huttig Building Products, Inc., Huttig, Inc. Also

represented by MICHAEL PAUL HOUSE; K ARL J.

WORSHAM, Phoenix, AZ.

MEEN GEU OH, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, DC, argued for defendants-appellants. Also repre-

3a

sented by K YLE SHANE BECKRICH, BRIAN M. BOYNTON,

TARA K. HOGAN, PATRICIA M. MC CARTHY.

ADAM H. GORDON, The Bristol Group PLLC, Washington, DC, for amicus curiae The American Steel

Nail Coalition. Also represented by LAUREN FRAID,

JENNIFER MICHELE SMITH.

Before TARANTO , CHEN, and STOLL , Circuit Judges.

TARANTO , Circuit Judge.

In 2018, pursuant to § 232 of the Trade Expansion Act

of 1962, Pub. L. No. 87-794, 76 Stat. 872, 877, codified as

amended at 19 U.S.C. § 1862, the Secretary of Commerce

reported to the President that steel imports threatened

national security by contributing to unsustainably low levels of use of domestic steel-producing capacity, and the

President, agreeing with the Secretary’s finding, issued

Proclamation 9705 to adopt a plan of action to address that

threat, starting with imposition of higher tariffs on steel

imports from certain countries but providing for monitoring and future adjustments if needed. In 2020, the President issued Proclamation 9980, which, based on the

required monitoring, raised tariffs on imports of steel

derivatives such as nails and fasteners. That proclamation was challenged in two cases (before us here) filed in

the Court of International Trade (Trade Court)—one by

PrimeSource Building Products, Inc.; the other by Oman

Fasteners, LLC, Huttig Building Products, Inc., and Huttig, Inc. (collectively, Oman Fasteners)—against the

United States, the President, and two federal agencies

and their heads (collectively, the government). The Trade

Court held Proclamation 9980 to be unauthorized by § 232

because the new derivatives tariffs were imposed after the

passing of certain deadlines for presidential action set

4a

forth in § 232. See PrimeSource Building Products, Inc.

v. United States, 497 F. Supp. 3d 1333 (Ct. Int’l Trade

2021); PrimeSource Building Products, Inc. v. United

States, 505 F. Supp. 3d 1352 (Ct. Int’l Trade 2021); Oman

Fasteners, LLC v. United States, 520 F. Supp. 3d 1332

(Ct. Int’l Trade 2021).

The government appeals. After the Trade Court issued its decisions on the merits, we decided Transpacific

Steel LLC v. United States, 4 F.4th 1306 (Fed. Cir. 2021),

cert. denied, 142 S. Ct. 1414 (2022), which led the Trade

Court to issue stays of its judgments in the two cases. In

Transpacific, we upheld a presidential proclamation that

increased tariffs on steel beyond Proclamation 9705’s

rate, concluding that when the President, within the § 232

time limits at issue, adopts a plan of action that contemplates future contingency-dependent modifications, those

time limits do not preclude the President from later adding to the initial import impositions in order to carry out

the plan to help achieve the originally stated nationalsecurity objective where the underlying findings and

objective have not grown stale. We now uphold Proclamation 9980. That proclamation’s new imposition reaches

imports of steel derivatives, which are within § 232’s

authorization of presidential action based on the Secretary’s finding about imports of steel, and there is no staleness or other persuasive reason for overriding the President’s judgment that including derivatives helps achieve

the specific, original national-security objective. We

therefore reverse the judgments of the Trade Court.

I

A

Section 232 “empowers and directs the President to

act to alleviate threats to national security from imports.”

5a

Id. at 1311. For the President to act, the Secretary of

Commerce must, under § 232(b), first investigate the

effects on national security of imports of an article and

submit to the President within 270 days a report detailing

the Secretary’s findings about such effects. 19 U.S.C.

§ 1862(b)(1)(A)–(3)(A). The report must contain the Secretary’s recommendations for action or inaction with

respect to imports of that article. Id. § 1862(b)(3)(A). If

the Secretary finds that imports of the article “threaten

to impair the national security, the Secretary shall so

advise the President in [the] report.” Id. Under § 232(c),

within 90 days of receiving the Secretary’s report, the

President must determine whether to concur in that finding. Id. § 1862(c)(1)(A)(i). If the President concurs in that

finding, then within the same 90 days “the President

shall” also “determine the nature and duration of the

action that, in the judgment of the President, must be

taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the

national security.” Id. § 1862(c)(1)(A) (emphasis added).

If the President determines to take action with respect to

the import of the article and its derivatives, “the President

shall implement that action” within 15 days of the foregoing determinations, id. § 1862(c)(1)(B), that is, within 105

days of the Secretary’s report.

B

In 2017, the Secretary began investigating steel

imports and concluded that they posed a threat to national

security. J.A. 232–35. On January 11, 2018, the Secretary

reported to the President that the imports were “weakening our internal economy” and harming “the [domestic]

steel industry,” the continued vitality of which “is essential for national security applications.” Id. The Secretary

recommended that the President “take immediate action

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by adjusting the level of these imports through quotas or

tariffs” with the goal of “reducing import penetration

rates to approximately 21 percent,” so that “U.S. industry

would be able to operate at 80 percent of their capacity

utilization.” J.A. 236, 288. The 80 percent rate, the Secretary found, was the minimum “necessary to sustain

adequate profitability and continued capital investment,

research and development, and workforce enhancement

in the steel sector” and to thereby “enable U.S. steel mills

to increase operations significantly in the short-term and

improve the financial viability of the industry over the

long-term.” J.A. 234, 289.

On March 8, 2018, the President announced his concurrence and remedial plan. Proclamation 9705: Adjusting Imports of Steel into the United States, 83 Fed. Reg.

11,625 (Mar. 8, 2018). He concurred that “steel articles

are being imported into the United States in such quantities and under such circumstances as to threaten to impair

the national security.” Id. ¶ 5, 83 Fed. Reg. at 11,626. He

imposed a 25 percent tariff on imports of various steel

articles (e.g., flat-rolled products, bars and rods, tubes,

pipes, and ingots) from many countries. Id. ¶ 8, clause 2,

Annex, 83 Fed. Reg. at 11,626–29; see PrimeSource, 497

F. Supp. 3d at 1337–38 n.2. The President deemed this an

“important first step in ensuring the economic viability of

our domestic steel industry.” Proclamation 9705 ¶ 11, 83

Fed. Reg. at 11,626; id. clause 2, 83 Fed. Reg. at 11,627.

He retained the option to “remove or modify” the impositions if the United States and other countries were to

come up with suitable alternatives for remedying the

security threat. Id. ¶ 9, 83 Fed. Reg. at 11,626. More generally, the President directed the Secretary to “continue

to monitor imports of steel articles,” “review the status of

such imports with respect to the national security,” and

“inform the President of any circumstances that in the

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Secretary’s opinion might indicate the need for further

action by the President under section 232.” Id. clause

5(b), 83 Fed. Reg. at 11,628.

In light of, e.g., negotiations between the United

States government and some foreign governments, the

President issued a variety of follow-up proclamations to

make changes in the impositions of Proclamation 9705, including the August 2018 Proclamation 9772 that was challenged (and upheld by this court) in Transpacific. 4 F.4th

at 1314–16. The Secretary monitored relevant imports, as

required, and in January 2020, the President issued a new

proclamation—now covering derivatives of the earliercovered steel articles—based on information supplied by

the Secretary. Proclamation 9980: Adjusting Imports of

Derivative Aluminum Articles and Derivative Steel Articles into the United States, 85 Fed. Reg. 5281 (Jan. 24,

2020). 1

The President recited that the Secretary had informed

him that “domestic steel producers’ capacity utilization

ha[d] not stabilized for an extended period of time at or

above the 80 percent capacity utilization level” that was

the objective of Proclamation 9705. Id. ¶ 5, 85 Fed. Reg.

at 5281. The Secretary stated that “imports of certain

derivatives of steel articles have significantly increased

since the imposition of the tariffs,” and “[t]he net effect of

the increase of imports of these derivatives has been to

erode the customer base for U.S. producers of . . . steel

and undermine the purpose of the proclamations adjusting imports of . . . steel articles to remove the threatened

impairment of the national security.” Id. ¶ 5, 85 Fed. Reg.

1

The new proclamation covered derivatives of aluminum as well as steel articles, but only the steel aspects of

the proclamation are at issue before us.

8a

at 5282. The Secretary characterized this increase in

imports of steel derivatives as “circumvent[ing] the duties

on . . . steel articles imposed in . . . Proclamation 9705”

and “threaten[ing] to undermine the actions taken to

address the risk to the national security of the United

States found in . . . Proclamation 9705.” Id. ¶ 8, 85 Fed.

Reg. at 5282. The Secretary “assessed that reducing imports of the derivative articles” at issue “would reduce circumvention and facilitate the adjustment of imports

that . . . Proclamation 9705, as amended, made to increase

domestic capacity utilization to address the threatened

impairment of the national security of the United States.”

Id. Accepting the foregoing determinations by the Secretary, the President in Proclamation 9980 extended the 25

percent tariff to certain steel derivatives, including nails,

staples, and tacks. Id. clause 1, Annex II, 85 Fed. Reg. at

5283, 5290–92; see PrimeSource, 497 F. Supp. 3d at 1338–

39 n.3. He “concluded that it [was] necessary and appropriate” to extend the tariffs to the specified steel derivatives “to address circumvention . . . and to remove the

threatened impairment of the national security.” Proclamation 9980 ¶ 9, 85 Fed. Reg. at 5283.

C

PrimeSource and Oman Fasteners, which import steel

nails and fasteners covered by Proclamation 9980,

brought suit in the Trade Court to challenge the proclamation. As relevant now, they contended that the proclamation’s extension of the increased tariff to derivatives

was contrary to § 232 because it occurred in January 2020,

more than 105 days after the President received the Secretary’s report. The Trade Court agreed.

The Trade Court in the PrimeSource case concluded

that the 90-day and 15-day limits found in § 232(c) apply

to the President’s imposition of increased burdens on im-

9a

ports under the provision, including modifications of an

earlier plan of action that had been timely adopted. 497

F. Supp. 3d at 1343–59. The court held that, insofar as the

January 2020 Proclamation 9980 relied on the Secretary’s

January 2018 report on steel articles to satisfy the

§ 232(b) prerequisite to presidential action, it was

untimely under § 232(c). Id. When the government stipulated that it was relying solely on that report to satisfy

the § 232(b) prerequisite, the Trade Court held Proclamation 9980 invalid and entered final judgment against the

government. PrimeSource, 505 F. Supp. 3d at 1353–58.

The Trade Court reached the same result in the Oman

Fasteners case. 520 F. Supp. 3d at 1335–39.

In both cases, the government timely appealed and

also moved for at least a partial stay of the judgment

pending appeal. The Trade Court granted stays, reflecting the government’s newly enhanced chance of success

on the merits in light of the intervening decision of this

court in Transpacific. See PrimeSource Building Products, Inc. v. United States, 535 F. Supp. 3d 1327, 1329–36

(Ct. Int’l Trade 2021); Oman Fasteners, LLC v. United

States, 542 F. Supp. 3d 1399, 1403–09 (Ct. Int’l Trade

2021). The Trade Court did, however, note two distinctions of these cases from Transpacific—these cases

involve an extension to derivatives of a tariff initially

imposed on the articles whose importation was found to

threaten national security, not (as in Transpacific) an

increase in rate of the initial tariff on the same articles;

and the time from Secretary report to challenged proclamation is much larger than in Transpacific (two years

versus seven months). See PrimeSource, 535 F. Supp. 3d

at 1332–33; Oman Fasteners, 542 F. Supp. 3d at 1403–05.

10a

We have jurisdiction over the Trade Court’s final judgments under 28 U.S.C. § 1295(a)(5). 2

II

On appeal, the government maintains that the Trade

Court’s decisions are incorrect in light of Transpacific.

Appellees defend the Trade Court’s decisions, asserting

that factual differences render Transpacific inapplicable

and that the government’s reading of § 232 would run

afoul of the delegation doctrine.

We review the Trade Court’s interpretation of the

statute de novo. GPX International Tire Corp. v. United

States, 780 F.3d 1136, 1140 (Fed. Cir. 2015). To the extent

relevant here, we may review an allegation that the President acted in violation of the Constitution. USP Holdings, 36 F.4th at 1365. For an asserted statutory violation,

review is also available, but it is limited: “For a court to

interpose, there has to be a clear misconstruction of the

governing statute, a significant procedural violation, or

action outside delegated authority.” Maple Leaf Fish Co.

v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985). This

court has repeatedly relied on the Maple Leaf formulation

2

In Transpacific, we flagged the question of whether

the claims against the President, as a defendant, must be

dismissed. 4 F.4th at 1318 n.5; accord PrimeSource, 497

F. Supp. 3d at 1361–62, 1365–70 (Baker, J., concurring in

part and dissenting in part). That question arises here as

well. Based on our recent precedent, we hold that the

claims against the President must be dismissed, but given

the presence of the other defendants, we have jurisdiction

to review the Trade Court’s decisions on the merits. See

USP Holdings, Inc. v. United States, 36 F.4th 1359, 1366

(Fed. Cir. 2022).

11a

to indicate the “limited” scope of review of nonconstitutional challenges to presidential action. USP

Holdings, 36 F.4th at 1365–66 & n.3 (discussing “limited”

scope, quoting Maple Leaf, and also quoting formulations

approving review of whether “the President clearly misconstrued his statutory authority” and “whether the President has violated an explicit statutory mandate” (cleaned

up)); Silfab Solar, Inc. v. United States, 892 F.3d 1340,

1346 (Fed. Cir. 2018).

A

In Transpacific, we addressed whether § 232(c)(1)

“permits the President to announce a continuing course of

action within the statutory time period and then modify

the initial implementing steps in line with the announced

plan of action by adding impositions on imports to achieve

the stated implementation objective.” 4 F.4th at 1318–19.

We concluded that the President may do so, explaining:

[T]he best reading of the statutory text of § 1862,

understood in context and in light of the evident

purpose of the statute and the history of predecessor enactments and their implementation, is that

the authority of the President includes authority to

adopt and carry out a plan of action that allows

adjustments of specific measures, including by

increasing import restrictions, in carrying out the

plan over time.

Id. at 1319. And we upheld application of that authority

to an increase in impositions that could have been adopted

initially under § 232(c) where the President had initially

announced a plan of action and later found that an

increase would help solve the specific capacity-utilization

problem that was the basis for the finding that imports

threatened national security. Id. at 1310, 1332–33.

12a

Proclamation 9980 comes within the interpretation of

§ 232 we adopted in Transpacific. The initial proclamation (Proclamation 9705) is the same here as in Transpacific. As described above, that proclamation rested on the

Secretary’s finding that imports of steel articles were

threatening national security by impairing achievement of

an 80 percent capacity utilization level found important

for domestic steel makers to sustain their operations to

meet national-security needs. J.A. 232–36, 288–89; see

Proclamation 9705 ¶¶ 2, 4–5, 83 Fed. Reg. at 11,625–26.

Proclamation 9705 announced a continuing plan of action

aimed at achieving that goal, with monitoring and notice

of possible changes in the future. Id. ¶¶ 9, 11, clauses 2,

5(b), 83 Fed. Reg. at 11,626–28 (stating that the President

“may remove or modify the restriction on steel articles

imports,” characterizing “the tariff imposed by this proclamation [a]s an important first step in ensuring the economic viability of our domestic steel industry,” and directing the Secretary to “continue to monitor imports of steel

articles” and to “inform the President of any circumstances that in the Secretary’s opinion might indicate the

need for further action by the President under section

232”). Later, the Secretary informed the President that a

significant increase had occurred in imports of steel derivatives, which in simple economic terms constituted a circumvention of the protections initially adopted to enhance

and stabilize domestic steel-making capacity utilization,

undermining the effectiveness of the President’s previous

tariffs. Proclamation 9980 ¶¶ 5, 8, 85 Fed. Reg. at 5281–

82. In response, the President extended Proclamation

9705’s tariffs to various steel derivative products to

address the circumvention threatening the capacity-utilization objective. Id. ¶ 9, clause 1, Annex II, 85 Fed. Reg.

at 5283, 5290–92.

13a

Thus, the President, having “announce[d] a continuing

course of action within the statutory time period” (Proclamation 9705), “modif[ied] the initial implementing

steps . . . by adding impositions on imports” (extending

the tariffs to derivatives in Proclamation 9980) “in line

with the announced plan of action” (Proclamation 9705’s

directive to the Secretary to monitor imports and inform

the President of any relevant changes) “to achieve the

stated implementation objective” (long-term stabilization

of the capacity utilization rate at or above 80 percent).

Transpacific, 4 F.4th at 1318–19. An imposition on imports of derivatives of the articles that were the subject of

the Secretary’s threat finding is expressly authorized as

an available remedy by § 232(c). In acting to close a loophole exploited by steel-derivatives importers, the President was making a “contingency-dependent choice[ ] that

[is] a commonplace feature of plans of action,” id. at 1321,

adding use of a tool that he could have used in the initial

set of measures and later found important to address a

specific form of circumvention Congress recognized when

it authorized coverage of derivatives of the articles whose

imports the Secretary found to threaten national security.

See Oral Arg. at 25:03–26:20 (agreeing that the mechanism linking Proclamation 9980 to Proclamation 9705—

foreign steel producers, facing raised tariffs on direct imports, sold steel to foreign derivatives makers not (yet)

subject to raised tariffs, impairing market opportunities

of domestic steel makers—“is not complicated”).

B

The attempts by PrimeSource and Oman Fasteners to

distinguish Transpacific to reach a different result here

are unpersuasive. First, the fact that the Secretary’s 2018

report and Proclamation 9705 did not address the effect

of imports of derivatives is immaterial. The President

14a

may take action against derivative products regardless of

whether the Secretary has investigated and reported on

such derivatives. See 19 U.S.C. § 1862(b) (stating that the

Secretary’s investigation and report focus on an “article”);

id. § 1862(c)(1)(A)(ii) (empowering the President to then

adjust imports of both “the article and its derivatives”).

There is no textual basis for reading § 232 as empowering

the President to do so only at the initial plan-adoption

stage, not at later, modification stages. And what we recognized in Transpacific as serving the “evident purpose”

of § 232—permitting the President to act under an announced plan to adjust initial measures over time to reach

the initially adopted objective, 4 F.4th at 1323—applies

not only to an increase in tariff rates on the same entries

but equally to an extension to derivatives of measures

initially imposed only on the underlying articles.

Second, the greater gap in time between the Secretary’s finding and the challenged proclamation (here,

nearly two years; in Transpacific, seven months) does not

render Transpacific inapplicable. There is no textual

basis for a specific time limit on adjustments under a

timely adopted plan. Indeed, impositions under § 232

have on numerous occasions been modified many years after they were first adopted. Id. at 1326–29.

As we noted in Transpacific, a different question

might be presented where the underlying finding or

objective has become substantively stale; here, as in

Transpacific, we have no occasion to address that issue,

because “there is no genuine concern about staleness.”

Id. at 1332. Proclamation 9980 was issued in pursuit of

the same goal first articulated in Proclamation 9705 (extended stabilization at 80 percent of domestic capacity utilization) and in response to the “current information” provided to the President by the Secretary under the

15a

“requirements for monitoring the import reductions” that

were “put in place” by Proclamation 9705. Id. at 1332 n.10.

And insofar as appellees fault the President for imposing

tariffs on some derivatives but not others, and the government for declining to put into the record the updated data

the Secretary conveyed to the President, see PrimeSource

Br. 31–32; Oman Fasteners Br. 38 & n.15, the criticism is

meritless. The information at issue is not part of a legally

required and legally consequential decision of the Secretary, cf. USP Holdings, 36 F.4th at 1366–67, and so we

may not second-guess the facts found and measures taken

by the President to support his adjustment, see Florsheim

Shoe Co. v. United States, 744 F.2d 787, 795 (Fed. Cir.

1984) (citing United States v. George S. Bush & Co., 310

U.S. 371, 379–80 (1940)); Chang v. United States, 859 F.2d

893, 896 n.3 (Fed. Cir. 1988); Oral Arg. at 13:45–16:00

(acknowledging that there is no review of the President’s

pertinent factual and remedial-appropriateness determinations).

C

Reading § 232 to permit the President to modify an

initial plan of action to include derivatives, as he did here,

does not render it an unconstitutional delegation. The

Supreme Court has already rejected a delegation-doctrine challenge to § 232 (in an earlier form), holding that

the “clear preconditions to Presidential action” established by § 232, e.g., a finding by the Secretary regarding

the existence of a national-security threat, and consideration by the President of “a series of specific factors,” make

that authority “far from unbounded.” Federal Energy

Administration v. Algonquin SNG, Inc., 426 U.S. 548,

558–60 (1976) (citations omitted). The same is true today,

as those “clear preconditions” remain in effect, id., and

the President must still consider the statutory factors and

16a

act only upon receipt of a report from the Secretary, even

if the President possesses the modification authority at

issue here, see 19 U.S.C. § 1862(b)–(d). Moreover, if § 232

“easily fulfill[ed] th[e] [intelligible principle] test” in 1976,

Algonquin, 426 U.S. at 559, it also does so now, given that

the 1988 amendments, in adding the present deadlines,

further defined the congressional delegation of authority

to the President. We have rejected the contention that

Algonquin does not require rejection of a delegationdoctrine challenge to § 232 in its current form. Transpacific, 4 F.4th at 1332–33 (citing American Institute for International Steel, Inc. v. United States, 806 F. App’x 982,

983–91 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 133

(2020)); see also USP Holdings, 36 F.4th at 1365. We see

no basis for concluding otherwise here.

III

In sum, § 232’s deadlines did not prevent the President from modifying his initial timely adopted plan of

action by issuing Proclamation 9980, and that conclusion

does not render § 232 unconstitutional under the delegation doctrine. Because there are no more facts for the

Trade Court to find on remand if Transpacific controls,

as appellees agreed, Oral Arg. at 23:20–25, we reverse the

judgments of the Trade Court and remand the cases for

entry of judgment against PrimeSource and Oman Fasteners, including dismissal of the claims against the President.

The parties shall bear their own costs.

REVERSED AND REMANDED

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APPENDIX B

Slip Op. No. 21-144

UNITED STATES COURT OF INTERNATIONAL

TRADE

OMAN FASTENERS,

LLC, et al.,

Before: Jennifer ChoeGroves, Judge

M. Miller Baker,

Plaintiffs,

Judge

v.

Timothy C. Stanceu,

Judge

UNITED STATES, et al.,

Defendants. Consolidated Court No.

20-00037

OPINION AND ORDER

[Ordering a stay pending

measures.]

appeal and related

Dated: October 15, 2021

Michael P. House, Perkins Coie, LLP, of Washington,

D.C., for plaintiffs Oman Fasteners LLC, Huttig Building

Products, Inc., and Huttig Inc. With him on the submissions were Andrew Caridas, Shuaiqi Yuan, Jon B.

Jacobs, and Brenna D. Duncan.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,

of Washington, D.C., for defendants. With her on the submissions were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Aimee Lee,

Assistant Director, Meen Geu Oh, Senior Trial Counsel,

Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C.

18a

Stanceu, Judge. Defendants move for a partial stay

pending their appeal of the judgment this Court entered

in Oman Fasteners, LLC v. United States, Judgment

(June 10, 2021), ECF No. 108 (“Judgment”), and for certain other measures related to protection of potential government revenue. In the Judgment, the court awarded

remedies for plaintiff Oman Fasteners, LLC (“Oman”)

and plaintiffs Huttig Building Products, Inc. and Huttig,

Inc. (collectively, “Huttig”), importers of steel nails, in a

challenge to a Presidential action taken under Section 232

of the Trade Expansion Act of 1962, 19 U.S.C. § 1862

(“Section 232”), imposing additional duties of 25% ad valorem on certain imported products made of steel, including steel nails. 1 See Proclamation 9980, Adjusting

Imports of Derivative Aluminum Articles and Derivative Steel Articles Into the United States, 85 Fed. Reg.

5,281 (Exec. Office of the President Jan. 29, 2020) (“Proclamation 9980”). Plaintiffs oppose defendants’ motion.

The court orders a stay of the Judgment, orders suspension of liquidation of the entries affected by this litigation, and requires defendants to confer with Oman and

with Huttig to obtain agreements on bonding of entries

made on and after June 10, 2021, for protection of the revenue potentially owing due to Proclamation 9980.

I. BACKGROUND

The background of this action is set forth in our previous opinion and supplemented herein. See Oman Fasteners, LLC v. United States, 45 CIT __, 520 F. Supp. 3d 1332

(2021) (“Oman”). Other pertinent background is pre1

Citations to the United States Code herein are to the

2012 edition. Citations to the Code of Federal Regulations are to the 2020 edition.

19a

sented in decisions of this Court adjudicating a claim substantially the same as the one adjudicated in this litigation. See PrimeSource Bldg. Prods., Inc. v. United States,

45 CIT __, 497 F. Supp. 3d 1333 (2021) (“PrimeSource I”),

PrimeSource Bldg. Prods., Inc. v. United States, 45 CIT

__, 505 F. Supp. 3d 1352 (2021) (“PrimeSource II”).

Oman and Huttig brought actions, now consolidated,

challenging the lawfulness of Proclamation 9980 on February 7, 2020, [Oman’s] Compl. (Ct. No. 20-00037), ECF

No. 2; and February 18, 2020, [Huttig’s] Compl. (Ct. No.

20-00045), ECF No. 5. Shortly thereafter, upon the consent of all parties, this Court entered preliminary injunctions prohibiting defendants from collecting 25% cash

deposits on Oman and Huttig’s entries of merchandise

within the scope of Proclamation 9980 and also prohibiting

the liquidation of the affected entries. Order (Ct. No.

20-00037) (Feb. 21, 2020), ECF Nos. 34 (conf.), 35 (public)

(“Oman Prelim. Inj. Order”); Order (Ct. No. 20-00045)

(Mar. 4, 2020), ECF Nos. 29 (conf.), 30 (public) (“Huttig

Prelim. Inj. Order”). The preliminary injunctions also

required plaintiffs to terminate their existing continuous

bonds and replace them with continuous bonds having a

higher limit of liability to reflect the additional duties

Oman and Huttig otherwise would have been required to

deposit. Oman Prelim. Inj. Order 2; Huttig Prelim. Inj.

Order 2.

On March 9, 2020, in response to Oman’s and defendants’ Joint Notice of Proposed Scheduling Order and

Amended Injunction Order, the court ordered a stay of

Counts II and III of Oman’s complaint “pending the

Court’s decision on the parties’ motions on Count I of the

complaint.” Order 1 (Ct. No. 20-00037), ECF No. 46. The

court amended the preliminary injunctive order to provide that the order would continue in effect until the court

20a

entered judgment on Count I of Oman’s complaint. Id. at

2. On March 16, 2020, the court consolidated Ct. No.

20-00045 with Ct. No. 20-00037 sub nom. Oman Fasteners, LLC v. United States, stayed Counts II and III of

Huttig’s complaint pending the resolution of Count I, and

modified the preliminary injunction entered in Ct. No.

20-00045 to provide for the order to continue in effect until

judgment was entered on Count I. Order, ECF No. 54.

On September 11, 2020, and January 20, 2021, with the

consent of the parties, the court amended Oman and Huttig’s preliminary injunctions, respectively, to require

plaintiffs to “monitor [their] subject imports and foregone

duty deposits” instead of conferring with defendants prior

to the expiry of their continuous bonds, and to terminate

and replace each continuous bond once the amount of

foregone duty deposits reached the amount of the bond,

minus the baseline bond amount as calculated pursuant to

the general continuous bonding formula of U.S. Customs

and Border Protection (“Customs” or “CBP”). [Oman

Prelim. Inj.] Order 2 (Sept. 11, 2020), ECF Nos. 94 (conf.),

95 (public); [Huttig Prelim. Inj.] Order 2 (Jan. 20, 2021),

ECF Nos. 100 (public), 101 (conf.).

In the PrimeSource litigation, this Court awarded

summary judgment to plaintiff PrimeSource Building

Products, Inc., holding that Proclamation 9980 was issued

beyond the statutory time limits set forth in Section 232.

PrimeSource II, 45 CIT at __, 505 F. Supp. 3d at 1357.

Thereafter, the parties in the instant litigation filed a

Joint Status Report, in which the defendants agreed that

the decisions in PrimeSource were “decisive as to Count

I of Plaintiffs’ Complaints” and that as a result there was

“no reason for this Court not to grant Plaintiffs’ Motion

for Summary Judgment on Count I of the Complaints . . .

and deny Defendant[s’] Motion to Dismiss Count I of

21a

Plaintiffs’ Complaints.” Joint Status Report 1–2 (Apr. 30,

2021), ECF No. 105. Further, plaintiffs agreed to move

the court to lift the stay and dismiss Counts II and III of

their complaints. Id. Accordingly, in Oman, the court

granted summary judgment in favor of plaintiffs on Count

I of their complaints and dismissed without prejudice

Counts II and III. 45 CIT at __, 520 F. Supp. 3d at 1339.

The amended preliminary injunctions dissolved upon

the entry of judgment on June 10, 2021. See Judgment

1–2. In the Judgment, this Court ordered, inter alia, that

defendants liquidate the duties affected by this litigation

without the assessment of the 25% additional duties provided for in Proclamation 9980. Id.

Defendants filed a notice of appeal of the Judgment,

Notice of Appeal (Aug. 7, 2021), ECF No. 110, and shortly

thereafter their motion for a stay pending appeal and

other measures, Defs.’ Mot. for Stay of J. to Maintain the

Status Quo Ante Pending Appeal (Aug. 9, 2021), ECF No.

111 (conf.), (Oct. 14, 2021), ECF No. 119 (public) (“Defs.’

Mot. for Stay”). Defendants requested that, for the pendency of the appeal, the court: (1) stay the requirement to

liquidate Oman’s and Huttig’s entries without the assessment of the 25% additional duties and reinstate the order

to suspend liquidation; (2) stay the requirement to refund

with interest any deposits of estimated duties under Proclamation 9980 made by Oman and Huttig; and (3) reinstate the requirements that plaintiffs monitor their imports of merchandise covered by Proclamation 9980 and

maintain a sufficient continuous bond for the duty liability

on these imports. Defs.’ Mot. for Stay 1–2. Plaintiffs filed

their opposition to defendants’ stay motion on August 30,

2021. Pls.’ Opp’n to Defs.’ Mot. for Stay of J. Pending

Appeal, ECF Nos. 116 (conf.), 117 (public) (“Pls.’ Opp’n”).

22a

II. D ISCUSSION

In exercising its traditional powers to further the administration of justice, a federal court may stay enforcement of a judgment pending the outcome of an appeal.

Nken v. Holder, 556 U.S. 418, 421 (2009). “While an

appeal is pending from . . . [a] final judgment that grants,

continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction, the court may suspend,

modify, restore, or grant an injunction on terms for bond

or other terms that secure the opposing party’s rights.”

USCIT R. 62(d). When that judgment was rendered by a

three-judge panel, “the order must be made . . . by the

assent of all its judges, as evidenced by their signatures.”

Id.

The party seeking a stay pending appeal has the burden of demonstrating that the stay is justified by the circumstances. Nken, 556 U.S. at 433–34. We consider four

factors in deciding whether defendants have met that burden: (1) whether defendants have made a strong showing

that they will succeed on the merits; (2) whether they will

be irreparably harmed absent the stay; (3) whether issuance of the stay will substantially injure plaintiffs; and

(4) where the public interest lies. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). “There is substantial overlap between these and the factors governing preliminary

injunctions.” Nken, 556 U.S. at 434 (citing Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)). The “likelihood of success” and “irreparable harm” factors, working

together, are the most critical, and where the United

States is a party, the balance of equities and the public

interest factors “merge.” Id. at 434–35. We conclude that

all four factors support our granting defendants’ motion.

23a

A. Success on the Merits

The decision of the Court of Appeals for the Federal

Circuit (“Court of Appeals”) in Transpacific Steel LLC v.

United States, 4 F.4th 1306 (Fed. Cir. 2021) (“Transpacific II”), causes us to conclude that defendants have

made a sufficiently strong showing that they will succeed

on the merits on appeal. In Transpacific II, the Court of

Appeals vacated a judgment of this Court in Transpacific

Steel LLC v. United States, 44 CIT __, 466 F. Supp. 3d

1246 (2020) (“Transpacific I”), rejecting a claim similar in

some respects to a claim this Court found meritorious in

Oman, PrimeSource I, and PrimeSource II.

The subject of the Transpacific litigation is a Presidential proclamation that increased to 50% the then-existing 25% Section 232 duties on imports of steel products

from Turkey. See Proclamation 9772, Adjusting Imports

of Steel Into the United States, 83 Fed. Reg. 40,429 (Exec.

Office of the President Aug. 15, 2018) (“Proclamation

9772”). In Transpacific I, this Court held the proclamation invalid as untimely and as a violation of equal protection. Regarding the former, Transpacific I held that

Proclamation 9772 was issued after the close of the combined 105-day time period Congress established in the

1988 amendments to Section 232 (the time period codified

as Section 232(c)(1), 19 U.S.C. § 1862(c)(1)), that commenced upon President Trump’s receipt, on January 11,

2018, of a report by the Secretary of Commerce issued under the authority of 19 U.S.C. § 1862(b)(3)(A) (the “2018

Steel Report”). The President’s receipt of the 2018 Steel

Report was the procedural predicate for the issuance of

a previously issued proclamation, Proclamation 9705,

Adjusting Imports of Steel Into the United States, 83 Fed.

Reg. 11,625 (Exec. Office of the President Mar. 15, 2018)

(“Proclamation 9705”).

24a

In Transpacific II, the Court of Appeals reversed the

decision of this Court in Transpacific I. On the issue of

the time limits added by the 1988 amendments to Section

232, the Court of Appeals reasoned that “[n]one of the new

language in the statute, on its own or by comparison to

what came before, implies a withdrawal of previously

existing presidential power to take a continuing series of

affirmative steps deemed necessary by the President to

counteract the very threat found by the Secretary.”

Transpacific II, 4 F.4th at 1329. The Court of Appeals

stated that “[i]n this context, the directive to the President to act by a specified time is not fairly understood as

implicitly meaning ‘by then or not at all’ as to each discrete

imposition that might be needed, as judged over time.”

Id. at 1329–30.

The instant litigation arose from somewhat different

facts than did the Transpacific litigation. Instead of an

upward adjustment to the tariffs imposed by a previous

Section 232 proclamation, the action contested here

imposed, for the first time, tariffs of 25% on a previously

unaffected group of products. These products, identified

in Proclamation 9980 as “Derivative Steel Articles,” Proclamation 9980, 85 Fed. Reg. at 5,281, were different than

the steel articles affected by the earlier Presidential proclamation, Proclamation 9705. As in PrimeSource, defendants here relied upon the President’s receipt of the 2018

Steel Report as the procedural basis upon which the President issued Proclamation 9980, arguing that the President retained “modification” authority over the previous

Section 232 action. See Defs.’ Mot. to Dismiss Count I for

Failure to State a Claim 29–31 (Mar. 20, 2020), ECF No.

57; Joint Status Report 2 (“As was true in the PrimeSource litigation . . . [d]efendants’ position remains that

the procedural preconditions for the issuance of Proclamation 9980 were met by the Secretary’s 2018 Steel Re-

25a

port and the timely issuance of Proclamation 9705 . . . .”).

Proclamation 9980 was signed by the President on January 24, 2020 (and published in the Federal Register on

January 29, 2020), long after the President’s receipt, on

January 11, 2018, of the 2018 Steel Report. In PrimeSource I, this Court held that, due to the combined 105day time limitation set forth in 19 U.S.C. § 1862(c)(1), the

President’s authority to adjust tariffs on the “derivative”

articles of steel had expired by the time Proclamation

9980 was issued, if that time period were presumed

to commence upon the receipt of the 2018 Steel Report.

45 CIT at __, 497 F. Supp. 3d at 1356. We concluded, later,

that defendants had waived any defense that the procedural requirements of Section 232 were met based on any

procedure other than one reliant upon the 2018 Steel

Report. Oman, 45 CIT at __, 520 F. Supp. 3d at 1338.

Our decision in Oman is also distinguishable from

Transpacific II with respect to the time period that

elapsed between the receipt of a Section 232(b)(3)(A)

report from the Secretary of Commerce and the President’s taking implementing action. In issuing Proclamation 9980, the President acted more than two years after

receiving the 2018 Steel Report. In the Transpacific litigation, the analogous time period was approximately

seven months. In Transpacific II, the Court of Appeals

rejected the appellee’s argument that Congress sought,

through the time limits, to ensure that the President will

have timely information on which to act. 4 F.4th at 1332

(“Concerns about staleness of findings are better treated

in individual applications of the statute, where they can be

given their due after a focused analysis of the proper role

of those concerns and the particular finding of threat at

issue.”). That all said, we express no view on whether the

factual distinction between this case and Transpacific II

is material.

26a

Even though Transpacific II and this case arose from

somewhat different facts, we nevertheless conclude that

the opinion of the Court of Appeals potentially affects the

outcome of this litigation. In reaching this conclusion, we

do not opine on whether Transpacific II necessarily controls that outcome, i.e., whether the President’s adjusting

of tariffs on derivatives of steel products falls within what

the Court of Appeals termed, in a different factual setting,

“a continuing series of affirmative steps deemed necessary by the President to counteract the very threat found

by the Secretary,” id. at 1329. But for purposes of ruling

on the instant stay motion, it suffices that the discussion

in Transpacific II of the “continuing” nature of Presidential Section 232 authority is expressed in broad terms.

Citing their petition in Transpacific II for panel

rehearing and rehearing en banc, plaintiffs argued that

Transpacific II does not demonstrate defendants’ likelihood of success on the merits because it “is not final.” Pls.’

Opp’n 5 (citing Combined Pet. for Panel Reh’g and Reh’g

En Banc of Pls.-Appellees (Ct. No. 2020-2157) (Aug. 23,

2021), ECF No. 68). Oman and Huttig rely on the “strong

dissenting opinion” in Transpacific II and “the fact that

two panels of this Court . . . previously held presidential

action outside the statutory deadlines unlawful.” Id.

More recently, on September 24, 2021, the Court of

Appeals denied the petition for panel rehearing and the

petition for rehearing en banc, and the mandate has now

been issued. Order (Ct. No. 2020-2157), ECF No. 76; see

Mandate (Ct. No. 2020-2157) (Oct. 1, 2021), ECF No. 78.

We conclude that defendants have made a showing that

they will succeed on the merits on appeal that is sufficient

to satisfy the first factor in our analysis.

27a

B. Irreparable Harm

in the Absence of the Requested Stay

In their motion for a stay, defendants request that, for

the pendency of the appeal, the court: (1) stay the requirement to liquidate Oman and Huttig’s entries without the

assessment of the 25% additional duties and reinstate the

order to suspend liquidation; (2) stay the requirement to

refund with interest any deposits of estimated duties

under Proclamation 9980 made by Oman and Huttig; and

(3) reinstate the requirement that plaintiffs monitor their

imports of merchandise covered by Proclamation 9980

and maintain a sufficient continuous bond for the duty

liability on these imports. Defs.’ Mot. for Stay 1–2. The

court concludes that all three of these requested measures

are necessary to prevent a form of irreparable harm to the

United States. As we discuss below, that harm is the loss

of the authority, provided for by statute and routinely

exercised by Customs in every import transaction, to

require and maintain such bonding as it determines is reasonably necessary to protect the revenue of the United

States. Without the requested stay, the judgment

entered in Oman would interfere with the exercise of that

authority.

In Section 623(a) of the Tariff Act of 1930, Congress

explicitly recognized the importance of security, such as

bonding, to protect the revenue. In pertinent part, the

relevant provision reads as follows:

In any case in which bond or other security is

not specifically required by law, the Secretary of

the Treasury may by regulation or specific instruction require, or authorize customs officers to require such bonds or other security as he, or they,

may deem necessary for the protection of the revenue . . . .

28a

19 U.S.C. § 1623(a). This authority is effectuated in the

Customs Regulations and applies generally to all import

transactions. See 19 C.F.R. § 113. Due to the decision of

the Court of Appeals in Transpacific II, the government

has established a likelihood that ultimately it will assess

Section 232 duties of 25% ad valorem on all entries at

issue in this litigation. In any ordinary import transaction, i.e., one not affected by litigation such as this, Customs would exercise its statutory and regulatory authority to ensure that the basic importer’s bond (be it a continuous or single transaction bond) has a sufficient limit of

liability to secure the liability for all potential duties, such

as the Section 232 duties that potentially will be owed by

Oman and Huttig.

Importers’ bonds are the ordinary means by which the

government ensures that the joint and several liability of

the importer of record, and of its surety (up to the limit of

liability on the bond), will attach for the payment of all

duties and other charges eventually determined to be

owed. Notably, in the situation posed by this litigation,

Oman and Huttig, due to the preliminary injunction that

dissolved upon the entry of judgment in this litigation,

have made no cash deposits of estimated duties to cover

potential duty liability from Proclamation 9980. The continuous bond required by the consent preliminary injunction was a substitute for these estimated duty deposits.

If an importer’s bond has a limit of liability that is too

low to cover the ordinary duties plus the 25% duties, there

is an inherent risk to the revenue, codified by statute and

effectuated by regulation, because one of the two parties

that contractually could have been bound to pay the

duties—the surety—has liability limited by the face

amount of the bond. In short, Congress contemplated in

19 U.S.C. § 1623 that the government should have resort

29a

to two parties for assessed duty liability, the importer of

record and the surety.

We do not base our decision to grant defendants’

motion on a factual determination that plaintiffs will be

unable to satisfy their potential duty obligation. Rather,

we base it on the loss of the ability of the United States to

exercise, as it would in the ordinary course of administering import transactions, the statutory authority of

19 U.S.C. § 1623(a) to secure this potential duty liability.

That loss, absent the requested stay, itself will constitute

an irreparable harm to the United States. 2 But for the

Judgment entered in Oman, the government would maintain, and continue into the future, the requirement of

bonding adequate to secure the revenue potentially owing

2

Because we find irreparable harm for the reasons

noted, we need not, and do not, consider whether finality

of liquidation itself constitutes potential irreparable harm

to the United States. Defendants claim they may be unable to collect duties on entries for which liquidation has

become final under 19 U.S.C. § 1514(a). See Defs.’ Mot.

for Stay of J. to Maintain the Status Quo Ante Pending

Appeal 14–15 (Aug. 9, 2021), ECF No. 111 (conf.), (Oct. 14,

2021), ECF No. 119 (public). Their argument is brought

into question by precedent recognizing the authority of

this Court, in a case brought according to 28 U.S.C.

§ 1581(i), to enforce its own judgments by ordering the

reliquidation of the entries. See Shinyei Corp. of Am. v.

United States, 355 F.3d 1297, 1311– 12 (Fed. Cir. 2004).

The opinion in Shinyei reasoned that finality of liquidation under 19 U.S.C. § 1514 does not “preclude judicial

enforcement of court orders after liquidation,” as “the

Court of International Trade has been granted broad

remedial powers.” Id. at 1312.

30a

on the entries affected by this case. In summary, were we

to deny the government’s motion to stay the effect of the

Judgment as to these entries, we would be interfering

with the exercise of the government’s statutory authority

under 19 U.S.C. § 1623(a). Based on the intent Congress

expressed in enacting that provision, we conclude that any

such interference is best avoided.

In addition to enhanced bonding, the government’s

motion seeks a stay of our order to liquidate without Section 232 liability the entries subject to this litigation and a

suspension of the liquidation of those entries pending the

appeal. We agree that these steps are warranted. The

court notes the possibility that finality of liquidation,

should it attach to all entries associated with a particular

continuous bond, could result in the cancellation of such a

bond and the resultant extinguishing of the liability of the

surety. Such a prospect would pose irreparable harm to

the United States for the reasons the court has discussed.

Because avoiding irreparable harm requires that the government have the authority not only to require, but to

maintain, sufficient bonding for potential duty liability on

all entries at issue in this case, we conclude that avoiding

such harm requires that the affected entries remain in an

unliquidated state during the pendency of the appeal.

C. Balance of the Hardships

The government also prevails on the third factor. As

the court has pointed out, bonding that is inadequate to

secure potential duties is deleterious to the interest of the

United States in the protection of the revenue, an interest

protected by statute. Defendants do not seek an order

requiring cash deposits. Instead, under the government’s

motion, plaintiffs will incur the costs of maintaining

enhanced bonding for the potential Section 232 duty liability, i.e., the cost of the bond premiums.

31a

As a result of the previous agreements, Oman and

Huttig have bonding that secures the estimated duty liability for all entries between February 8, 2020, until June

10, 2021, the date judgment was entered in favor of these

plaintiffs. To address bonding for entries after that time

period, defendants request that the court directly order

reinstatement of the previous requirements for monitoring and “sufficient bonding.” Defs.’ Mot. for Stay 1–2.

Defendants’ proposed order would impose specific bonding requirements for each plaintiff. [Proposed] Order

1–3 (Aug. 9, 2021), ECF No. 111-1.

Oman argues that, in its particular circumstance, it

will incur a substantial harm if it must incur the cost of

maintaining bonding for entries after June 10, 2021. Pls.’

Opp’n 7. Rather than impose the bonding and monitoring

requirements directly, the court considers it preferable

that the plaintiffs be involved in negotiations of the

arrangements for the continuation of bonding on their

respective entries. Accordingly, the court will direct

defendants to consult with Oman and with Huttig with the

objective of reaching, and implementing, agreements

under which the entries occurring on and after June 10,

2021, and going forward throughout the appeal, will be

covered by bonding, but only such bonding as is reasonably necessary to secure the potential revenue, including

the Section 232 duties. The court will direct, further, that

should defendants be unable to reach, and enter into, an

agreement with a plaintiff or plaintiffs, the involved parties shall file with the court a joint status report on the

negotiations.

Oman argues, further, that the harm is magnified due

to the same entries subject to the stay being subject to

“the as-yet uninitiated seventh administrative review

(covering entries between July 1, 2021 and June 30, 2022)

32a

and very likely eighth administrative review (covering

entries between July 1, 2022 and June 30, 2023)” in Certain Steel Nails From the Republic of Korea, Malaysia,

the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam: Antidumping Duty Orders, 80 Fed. Reg.

39,994 (Int’l Trade Admin. July 13, 2015) (“Oman Nails”).

Id. at 7–8. Further, Oman states that if Commerce follows

its “normal regulatory schedule for conducting administrative reviews, the final results of the seventh and eighth

Oman Nails reviews would not be published until the end

of 2023 and 2024, respectively” with suspension of liquidation “lifted thereafter, with actual liquidation of the

entries occurring well into the following year[s].” Id. at 8.

That Oman’s merchandise at issue is subject to separate administrative proceedings, and any potential duties,

separate from Section 232, stemming from those proceedings, does not create a present burden sufficient to alter

our analysis of the balance of the hardships related to this

litigation.

Characterizing its agreement to continued bonding at

the time of the initial preliminary injunction order as the

“lesser of two extreme burdens,” Oman submits that

“to ask Plaintiffs to accept the same bonding—for an even

longer period—when this Court has already held that

Proclamation 9980 is unlawful and void . . . is an entirely

different matter.” Id. at 9. Plaintiffs also oppose the

court’s entering a stay that applies retroactively to entries

prior to the imposition of the stay because doing so would

“grant Defendants a bonding windfall for merchandise

that entered the United States at a time when the Court

had declared Proclamation 9980 unlawful and void.” Id.

at 10. Oman’s argument is unconvincing. As we have

explained, our conclusion that the government potentially

will have a claim to Section 232 revenue is based on certain

33a

language in Transpacific II, to which we give due consideration. The government’s proposed motion essentially

would continue the balance struck by the parties in their

agreements for a consent injunction that maintained enhanced bonding while the outcome of this case was not yet

determined by this Court. In comparison, denying the

government the authority to require such bonding on current and future entries poses a hardship on the United

States that, under the statutory scheme designed to

ensure adequate protection of the revenue, is unwarranted now that such potential duty liability exists.

D. The Public Interest

The public interest favors allowing the government to

exercise its lawful authority to protect the revenue, and

potential revenue, of the United States, which in this case

involves a significant amount of potential duty liability.

See Defs.’ Mot. for Stay 20.

III. CONCLUSION AND O RDER

All four factors necessitate granting the government’s

motion to stay. Upon the court’s consideration of the parties’ motions, including defendants’ motion to stay and

plaintiffs’ response, and all other filings herein, and upon

due deliberation, it is hereby

ORDERED that Defs.’ Mot. for Stay of J. to Maintain

the Status Quo Ante Pending Appeal (Aug. 9, 2021), ECF

No. 111 (conf.), (Oct. 14, 2021), ECF No. 119 (public), be,

and hereby is, granted in part and denied in part; it is further

ORDERED that the order of this Court to liquidate

the entries subject to this litigation and to refund with

interest any deposits of estimated duties under Proclamation 9980 made by Oman and Huttig, as stated in the

34a

Judgment entered on June 10, 2021, be, and hereby is,

stayed pending the appeal of that Judgment before the

United States Court of Appeals for the Federal Circuit; it

is further

ORDERED that defendants be, and hereby are, enjoined, through the pendency of the appeal, from liquidating the entries affected by this litigation; it is further

ORDERED that defendants shall confer with Oman

and Huttig with the objective of reaching, and entering

into, an agreement with Oman and an agreement with

Huttig on monitoring and such bonding for entries of merchandise within the scope of Proclamation 9980 that have

occurred, and will occur, on or after June 10, 2021, as is

reasonably necessary to secure potential liability for

duties and fees, including potential liability for duties

under Proclamation 9980; in the event of failure to reach

agreement, the involved parties shall file a joint status

report with the court no later than November 1, 2021; and

it is further

ORDERED that this Order shall remain in effect until

issuance of a mandate of the United States Court of

Appeals for the Federal Circuit in the pending appeal of

the Judgment entered by the court in this litigation.

/s/ Jennifer Choe-Groves

Jennifer Choe-Groves, Judge

/s/ M. Miller Baker M.

Miller Baker, Judge

/s/ Timothy C. Stanceu

Timothy C. Stanceu, Judge

Dated: October 15, 2021

New York, New York

35a

APPENDIX C

Slip Op. No. 21-72

UNITED STATES COURT OF INTERNATIONAL

TRADE

OMAN FASTENERS,

LLC, et al.,

Before: Jennifer ChoeGroves, Judge

M. Miller Baker,

Plaintiffs,

Judge

v.

Timothy C. Stanceu,

Judge

UNITED STATES, et al.,

Defendants. Consolidated Court No.

20-00037

OPINION

[Denying defendants’ motion to dismiss, awarding

summary judgment to plaintiffs on Count I of their

respective complaints, and dismissing the remaining

counts of each of plaintiffs’ complaints. Judge Baker files

a separate opinion concurring in part and dissenting in

part.]

Dated: June 10, 2021

Michael P. House, Perkins Coie, LLP, of Washington,

D.C., for plaintiffs Oman Fasteners LLC and Huttig, Inc.,

and Huttig Building Products, Inc. With him on the submissions were Andrew Caridas and Shuaiqi Yuan.

Tara K. Hogan, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,

of Washington, D.C., for defendants. With her on the submissions were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Aimee Lee,

36a

Assistant Director, and Meen Geu Oh, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, D.C.

Stanceu, Judge: Plaintiffs Oman Fasteners LLC

(“Oman”), Huttig Building Products, Inc., and Huttig Inc.

(collectively, “Huttig”), U.S. importers of steel fasteners,

brought actions, now consolidated, to contest a proclamation issued by the President of the United States (“Proclamation 9980”) in January 2020. Adjusting Imports of

Derivative Aluminum Articles and Derivative Steel

Articles Into the United States, 85 Fed. Reg. 5,281 (Exec.

Office of the President Jan. 29, 2020).

Before the court is a Joint Status Report, submitted

by all parties, responding to a request by the court. Also

before the court is a motion by plaintiffs for entry of final

judgment, which defendants do not oppose, subject to

their right to appeal. In response to statements of the

parties in the Joint Status Report and the unopposed

motion, and for the reasons discussed herein, the court

denies a motion by defendants to dismiss Count I of each

plaintiff’s complaint, enters summary judgment in favor

of each plaintiff on their respective Count I claims, and

dismisses the remaining counts in each plaintiff’s complaint without prejudice.

I. BACKGROUND

A. Proclamation 9980

On January 24, 2020, President Donald Trump issued

Proclamation 9980, which imposed a 25% duty on certain

imported articles made of steel, including nails and other

fasteners, and a 10% duty on certain imported articles

made of aluminum. As authority for its imposition of

duties on the articles, identified as “derivative aluminum

articles” and “derivative steel articles,” Proclamation

37a

9980 cited Section 232 of the Trade Expansion Act of 1962,

19 U.S.C. § 1862 (“Section 232”). 1

B. Procedural History of this Consolidated Action

On February 7, 2020, Oman commenced an action to

contest Proclamation 9980, naming the United States, et

al., as defendants and asserting claims in three counts.

Summons, ECF No. 1; Compl., ECF No. 2. Huttig commenced its action on February 18, 2020, on a complaint

consisting of the same three counts. Summons, ECF No.

1 (Ct. No. 20-00045); Compl., ECF No. 5 (Ct. No. 2000045).

On joint motions, the court consolidated the two

actions, with Court Number 20-00037 serving as the lead

case. Order (Mar. 16, 2020), ECF No. 54. In the same

order, the court, again with the consent of the parties,

stayed Counts II and III of each of the two complaints

pending the court’s decision on Count I of those complaints. Id. Stated in brief summary, Count I of each complaint claimed that Proclamation 9980 was invalid because

it was not based on a determination the President made

within the 90-day period provided in Section 232(c)(1)(A)

and was not implemented within the 15-day period set

forth in Section 232(c)(1)(B). Compl. ¶¶ 86–106.2. 2

Defendants moved under USCIT Rule 12(b)(6) to dismiss Count I of each of the plaintiffs’ complaints on March

1

All citations to the United States Code are to the 2012

edition.

2

For convenience of reference, citations are made to

the complaint in Court No. 20-00037. The complaint in

Court No. 20-00045 contains the same claims in the corresponding paragraphs.

38a

20, 2020, for failure to state a claim on which relief can be

granted. Mot. to Dismiss Count I for Failure to State a

Claim, ECF No. 57. On April 14, 2020, plaintiffs opposed

the motion to dismiss and moved for summary judgment

on Count I of each complaint. Mot. for Summ. J. with Respect to Count I of Pls.’ Compl., ECF No. 65. Defendants

opposed plaintiffs’ motion for summary judgment and

replied in support of their motion to dismiss Count I on

May 15, 2020. Defs.’ Reply in Supp. of Mot. to Dismiss

and Resp. to Pls.’ Mot. for Summ. J., ECF No. 78. Plaintiffs replied in support of their summary judgment motion

on June 1, 2020. Reply Mem. in Supp. of Pls.’ Mot. for

Summ. J., ECF No. 79.

Defendants’ motion to dismiss Count I of each of the

two complaints and plaintiffs’ motion for summary judgment are pending before the court, as is the Joint Status

Report and plaintiffs’ motion for entry of final judgment.

II.

D ISCUSSION

A. Jurisdiction and Standards of Review

The court exercises subject matter jurisdiction according to section 201 of the Customs Courts Act of 1980,

28 U.S.C. § 1581(i)(1)(B), which grants this Court exclusive jurisdiction of a civil action commenced against the

United States “that arises out of any law of the United

States providing for . . . tariffs, duties, fees, or other taxes

on the importation of merchandise for reasons other than

the raising of revenue.”

In deciding a motion to dismiss for failure to state a

claim upon which relief can be granted, the court assumes

all factual allegations in the complaint to be true (even if

doubtful in fact) and draws all reasonable inferences in a

plaintiff’s favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). A complaint does not need to contain detailed

39a

factual allegations, but it must state enough facts “to raise

a right to relief above the speculative level.” Id. Rule

8(a)(2) of this Court requires a complaint to contain “a

short and plain statement of the claim showing that the

pleader is entitled to relief.”

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” USCIT R. 56(a).

B. Plaintiffs’ Challenges to Proclamation 9980

In Count I of each of their respective complaints,

plaintiffs claim that Proclamation 9980 was untimely

issued because: (1) it was not issued within 90 days of the

date the President received a report from the Secretary

of Commerce meeting the requirements of Section

232(b)(3)(A), as required by Section 232(c)(1)(A), Compl.

¶ 103; and (2) it was not implemented within 15 days of a

timely decision by the President under Section

232(c)(1)(A), as required by Section 232(c)(1)(B), Compl.

¶ 105.

In Count II, plaintiffs assert that Proclamation 9980

also is invalid because Section 232 is an unconstitutional

delegation of power from the Congress to the President

that is “devoid of an intelligible principle.” Compl. ¶¶ 120,

121. In Count III, plaintiffs argue that Proclamation 9980

violates the constitutional guarantee of equal protection

by imposing additional tariffs on some derivative articles

of steel and not others, and by excluding from those tariffs

identical derivative articles manufactured in some foreign

countries but not others, without a legitimate government

purpose for the disparate treatment. Compl. ¶¶ 127–131.

40a

C. Our Decision in PrimeSource I

In PrimeSource Bldg. Prods., Inc. v. United States,

45 CIT __, 497 F. Supp. 3d 1333 (2021) (“PrimeSource I”),

we dismissed under USCIT Rule 12(b)(6) all claims of

plaintiff

PrimeSource

Building

Products,

Inc.

(“PrimeSource”) except the claim that Proclamation 9980

was untimely because it was issued beyond the 90-day and

15-day time limitations set forth in Section 232(c)(1)(A)

and (B), respectively. PrimeSource I, 45 CIT at __, 497

F. Supp. 3d at 1361. As do the plaintiffs in this consolidated case, the plaintiff in PrimeSource argued that Proclamation 9980 was issued after the expiration of the combined 105-day time period of Section 232(c)(1). See id. at

__, 497 F. Supp. 3d at 1344; Compl. ¶ 105. PrimeSource

argued that the only report that could have qualified as a

predicate for Proclamation 9980, and issued under Section

232(b)(3)(A), was one the Secretary of Commerce issued

in January 2018 on the effect of certain steel articles on

the national security of the United States (the “2018 Steel

Report”). PrimeSource I, 45 CIT at __, 497 F. Supp. 3d

at 1341. That report culminated in the President’s issuance of Proclamation 9705 in March 2018, which imposed

25% duties on various steel articles, see Adjusting

Imports of Steel Into the United States ¶¶ 1–2, 83 Fed.

Reg. 11,625 (Exec. Office of the President Mar. 15, 2018),

but not on the “derivative” articles of steel affected by

Proclamation 9980 in January 2020.

We stated in PrimeSource I that “[d]efendants do not

dispute that the 2018 Steel Report is, for purposes of Section 232(c), 19 U.S.C. § 1862(c), the report issued according to Section 232(b)(3)(A), 19 U.S.C. § 1862(b)(3)(A),

upon which the President based his adjustment to imports

of steel derivatives, including steel nails.” PrimeSource

I, 45 CIT at __, 497 F. Supp. 3d at 1345 (citing Defs.’ Mot.

41a

24–29). In denying defendants’ motion to dismiss PrimeSource’s “untimeliness” claim, we concluded that Proclamation 9980 does not comply with the limitations on the

President’s authority imposed by the 90- and 15-day time

limitations of Section 232(c)(1) if the combined 105-day

time period is considered to have commenced upon the

President’s receipt of the 2018 Steel Report. Id. at __, 497

F. Supp. 3d at 1356. We held that in this circumstance

PrimeSource had stated a plausible claim for relief, and

therefore we declined to dismiss it. Id. at __, 497 F. Supp.

3d at 1359.

After denying defendants’ motion to dismiss as to

PrimeSource’s timeliness claim, we denied the motion of

plaintiff PrimeSource for summary judgment on that

claim, determining that there existed one or more genuine

issues of material fact. Id. at __, 497 F. Supp. 3d at 1361.

Although concluding that Proclamation 9980 was

untimely under Section 232(c)(1) when viewed solely as an

action taken in response to the 2018 Steel Report, we also

concluded that there were genuine issues of material fact

that bore on the extent to which the subsequent “assessment” or “assessments” of the Commerce Secretary, as

identified in Proclamation 9980, validly could be held to

have served a function analogous to that of a Section

232(b)(3)(A) report. Id. at __, 497 F. Supp. 3d at 1360–61.

We also noted that we did not know what form of inquiry

or investigation the Commerce Secretary conducted prior

to his submission of these communications to the President and whether, or to what extent, that inquiry or investigation satisfied the essential requirements of Section

232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A). Id. at __, 497

F. Supp. 3d at 1360–61.

In summary, we concluded in PrimeSource I that factual information pertaining to the Secretary’s inquiry on,

42a

and his reporting to the President on, the derivative articles would be required in order for us to examine whether

and to what extent there was compliance by the President

with the procedural requirements of Section 232 and

whether any noncompliance that occurred was a “significant procedural violation.” Id. at __, 497 F. Supp. 3d at

1361 (quoting Maple Leaf Fish Co. v. United States, 762

F.2d 86, 89 (Fed. Cir. 1985) (requiring that a procedural

violation be “significant” in order to serve as a ground for

judicial invalidation of a Presidential action)). We added

that “at this early stage of the litigation, we lack a basis to

presume that these unresolved factual issues are unrelated to the issue of whether the President clearly misconstrued the statute or the issue of whether the President

took action outside of his delegated authority.” Id. at __,

497 F. Supp. 3d at 1361. We noted that the “filing of a

complete administrative record could be a means of resolving, or helping to resolve, these factual issues” and

directed the parties to consult on this matter and file a

scheduling order to govern the subsequent litigation. Id.

at __, 497 F. Supp. 3d at 1361.

D. Our Decision in PrimeSource II

On March 5, 2021, the parties in the PrimeSource litigation submitted a joint status report in lieu of a scheduling order. In it, defendants expressly waived “the opportunity to provide additional factual information that might

show that the ‘essential requirements of Section

232(b)(2)(A), 19 U.S.C. § 1862(b)(2)(A)’ were met,” adding

that “[d]efendants do not intend to pursue that argument.” Joint Status Rep. 2, ECF No. 108 (Ct. No.

20-00032) (quoting PrimeSource I, 45 CIT at __, 497

F. Supp. 3d at 1361). Defendants informed the court that

their “position continues to be that procedural preconditions for the issuance of Proclamation 9980 were met by

43a

the Secretary’s 2018 Steel Report and the timely issuance

of Proclamation 9705, a position that the majority has

already rejected.” Id. at 2–3. The PrimeSource joint status report concluded by stating that “the parties agree

and respectfully submit that there is no reason for this

Court to delay entry of final judgment. In so representing, the parties fully reserve all rights to appeal any

adverse judgment.” Id. at 3.

In PrimeSource Bldg. Prods., Inc. v. United States,

45 CIT __, Slip Op. 21-36 (Apr. 5, 2021) (“PrimeSource

II”), we concluded that defendants, through their statements in the parties’ joint status report, had waived “any

defense that the assessments of the Commerce Secretary,

as described in Proclamation 9980, were the functional

equivalent of a Section 232(b)(3)(A) report.” 45 CIT __,

Slip Op. 21-36 at 8. “In particular, defendants have waived

any defense grounded in a factual circumstance other

than one in which the 2018 Steel Report is the only submission made by the Commerce Secretary that could satisfy the requirements of Section 232(b)(3)(A) and upon

which Proclamation 9980 could have been based.” Id. at

__, Slip Op. 21-36 at 9–10. We concluded that “PrimeSource is now entitled to judgment as a matter of law,” id.

at __, Slip Op. 21-36 at 10, and we entered summary judgment in favor of plaintiff PrimeSource on its remaining

claim.

E. The Joint Status Report and Unopposed Motion

for Entry of Judgment

The Joint Status Report (Apr. 30, 2021), ECF No. 105

(“Joint Status Report”), submitted by counsel for all parties in this case, states, inter alia, that “the parties agree

that, in light of PrimeSource I and II, there is no reason

for this Court not to grant Plaintiffs’ Motion for Summary

Judgment on Count I of the Complaints, ECF No. 65, and

44a

deny Defendant’s Motion to Dismiss Count I of Plaintiffs’

Complaints.” Joint Status Report 1–2. The Joint Status

Report states further:

As was true in the PrimeSource litigation prior to

the Court’s entry of judgment, Defendants in this

case do not intend to introduce any additional evidence related to potential factual disputes or additional factual information showing that Proclamation 9980 satisfied the requirements of 19 U.S.C.

§ 1862(b)(2)(A). Defendants’ position remains that

the procedural preconditions for the issuance of

Proclamation 9980 were met by the Secretary’s

2018 Steel Report and the timely issuance of Proclamation 9705, but this Court has already rejected

that position. . . . Defendants fully reserve all

rights to appeal any adverse judgment.

Id. at 2.

In an unopposed motion for entry of final judgment,

“[p]laintiffs respectfully move the Court for entry of an

order fully adjudicating the claims alleged in Count I of

Plaintiffs’ Complaints” and “move the Court to dismiss

Counts II and III of Plaintiffs’ Complaints, without prejudice, resulting in a complete and final adjudication of this

action.” Unopposed Mot. for Entry of Final J. and Disposition of this Action 1 (Apr. 30, 2021), ECF No. 106. The

motion states that counsel for plaintiffs consulted with

counsel for defendants, who indicated that defendants do

not oppose this motion. Plaintiffs accompany their unopposed motion with a draft order that, inter alia, denies

defendants’ motion to dismiss Count I of plaintiffs’ complaints and awards summary judgment to plaintiffs on

their Count I claims. See [Proposed] Order (Apr. 30,

2021), ECF No. 106-1.

45a

F Award of Summary Judgment in Favor of Plaintiffs on Count I

As discussed above, each plaintiff’s Count I claim is

that Proclamation 9980 is invalid as untimely because it

neither was issued within the 90-day time period allowed

by Section 232(c)(1)(A) nor implemented within the

15-day time period allowed by Section 232(c)(1)(B). 3

Compl. ¶¶ 102–106. This claim is indistinguishable from

the claim upon which this Court granted summary judgment in favor of the plaintiff in PrimeSource II, as the

parties to this case acknowledge. Joint Status Report 1

(“The parties have conferred and now agree that the

Court’s decisions in Primesource I and Primesource II

are decisive as to Count I of Plaintiffs’ Complaints.”).

We conclude that, as to Count I of plaintiffs’ complaints, there is no longer a genuine issue of material fact

as a result of the representations the parties have made in

the Joint Status Report and in plaintiffs’ unopposed

motion for entry of judgment. In particular, defendants

have waived any defense grounded in a factual circumstance other than one in which the 2018 Steel Report is

the only submission made by the Commerce Secretary

that could satisfy the requirements of Section 232(b)(3)(A)

and upon which Proclamation 9980 could have been based.

3

Although both complaints, in their Count I titles, refer to “ultra vires” acts of the Secretary of Commerce,

Compl. 23 (Feb. 7, 2020), ECF No. 2, no claim against a

decision of the Commerce Department actually is stated,

and therefore we interpret each plaintiff’s Count I claim

as a challenge to Proclamation 9980 and not as a challenge

to an agency action.

46a

As we concluded in PrimeSource I, “the action taken

by Proclamation 9980 to adjust imports of derivatives was

not implemented during the 105-day time period set forth

in § 1862(c)(1), if that time period is considered to have

commenced upon the President’s receipt of the Steel

Report.” 45 CIT at __, 497 F. Supp. 3d at 1356. Due to

the parties’ joint and unopposed representations, there is

no genuine issue of material fact as to when that time

period began, and defendants have waived any defense

based on a contention that the time period began on any

date other than the President’s receipt of the 2018 Steel

Report.

To declare Proclamation 9980 invalid, we must find “a

clear misconstruction of the governing statute, a significant procedural violation, or action outside delegated

authority.” Maple Leaf Fish Co., 762 F.2d at 89. Because

the President issued Proclamation 9980 after the congressionally-delegated authority to adjust imports of the products addressed in that proclamation had expired, Proclamation 9980 was action outside of delegated authority.

For the reasons we stated in PrimeSource I, 45 CIT at __,

497 F. Supp. 3d at 1356–58, we find in the untimeliness of

Proclamation 9980 a significant procedural violation.

Plaintiffs, therefore, are now entitled to judgment as a

matter of law on their motions for summary judgment on

the claims stated in Count I of their respective complaints.

III. CONCLUSION

In summary, defendants have waived any defense that

the procedural requirements of Section 232 were met

based on a procedure other than one reliant upon the 2018

Steel Report. Summary judgment in favor of plaintiffs on

Count I of their respective complaints therefore is warranted, Proclamation 9980 having been issued after the

47a

President’s delegated authority to impose duties on derivatives of steel products had expired.

Further to the parties’ Joint Status Report and plaintiffs’ unopposed motion for entry of judgment, we deny

defendants’ motion to dismiss the claims stated in Count

I of plaintiffs’ respective complaints, grant plaintiffs’

motions for summary judgment on the claims stated in

Count I of their complaints, dismiss without prejudice

Counts II and III of their complaints, and order certain

other relief as requested in the unopposed draft order

accompanying plaintiffs’ motion for entry of final judgment. We will enter judgment in substantially the form

as set forth in plaintiffs’ unopposed draft order. 4

/s/ Jennifer Choe-Groves

/s/ Timothy C. Stanceu

Jennifer Choe-Groves, Judge

Timothy C. Stanceu, Judge

4

Further to the agreement of all parties, we are dismissing Counts II and III of plaintiffs’ respective complaints “without prejudice.” Even had the parties not requested dismissal, we would not have reached the issues

raised in these two counts. Reaching those issues would

not have been necessary because of our entry of summary

judgment on Count I of the complaints (which also would

have lifted the stay of Counts II and III). In acceding to

the request of the parties that we dismiss Counts II and

III without prejudice, we do not opine on the question of

whether or not either plaintiff would be in a position to

bring a future action that could reach the merits of any

argument against Proclamation 9980 that is made in

Count II or Count III of plaintiffs’ complaints.

48a

Dated: June 10, 2021

New York, New York

Baker, Judge, concurring in part and dissenting

in part:

For the reasons explained in PrimeSource Building

Products, Inc. v. United States, 497 F. Supp. 3d 1333, 1361

(CIT 2021) (Baker, J., dissenting), I respectfully dissent

from our exercise of subject-matter jurisdiction as to

Plaintiffs’ claims against the President, the entry of summary judgment in favor of Plaintiffs as to Count I of their

respective complaints, and the denial of the government’s

motion to dismiss Count I of those complaints.

I concur in our dismissal of Counts II and III without

prejudice as requested by the parties, but I write separately to explain that in so doing we are not impermissibly

“manufacturing” finality for the purpose of securing—if

not manipulating—appellate jurisdiction, a controversial

practice that is the subject of a long-festering circuit split.

See generally Mayer Brown LLP, Federal Appellate

Practice § 2.2(b)(1) (3d ed. 2018); see also Doe v. United

States, 513 F.3d 1348, 1352–55 (Fed. Cir. 2008). 5

5

Because the majority grants equitable relief in its entry of judgment accompanying today’s decision, the existence of finality here for purposes of 28 U.S.C. § 1295(a)(5)

(conferring appellate jurisdiction in the Federal Circuit

over “final decision[s]” of the CIT) may be academic. The

equitable relief granted by the majority today—ordering

the refund of duties previously paid—arguably constitutes an injunction for purposes of 28 U.S.C. § 1292(c)(1)

& (a)(1), which together confer appellate jurisdiction in

49a

Although Plaintiffs’ materially identical complaints

nominally allege three separate counts, for purposes of

Federal Rule of Civil Procedure 54(b)— and by extension

our own Rule 54(b), see USCIT R. 54(b)—all three counts

are, in substance, simply alternative legal theories asserted to support “one claim for relief.” USCIT R. 54(b)

(emphasis added). Count I alleges that the President violated Section 232’s procedural requirements in issuing

Proclamation 9980, see Case 20-37, ECF 2, ¶¶ 95–106, and

Case 20-45, ECF 5, ¶¶ 95–106; Count II alleges that Proclamation 9980 was unlawful because Section 232 represents an unconstitutional delegation of power by Congress to the Executive, see Case 20-37, ECF 2, ¶¶ 117–121,

and Case 20-45, ECF 5, ¶¶ 177–121; and Count III alleges

that Proclamation 9980 violated the equal protection component of the Due Process Clause of the Constitution’s

Fifth Amendment by imposing tariffs on steel derivative

imports from some countries but not others, see Case 2037, ECF 2, ¶¶ 128–131, and Case 20-45, ECF 5, ¶¶ 126–

129.

For all three counts, Plaintiffs seek the same relief: a

judgment declaring Proclamation 9980 void and an injunction restraining its enforcement and compelling refunds

of Section 232 duties previously collected. See Case 20-37,

ECF 2, at 31; Case 20-45, ECF 5, at 30. Because Plaintiffs

could—and with the majority’s decision today, do—obtain

only one recovery, their separate counts are but variations

on legal theories supporting one claim. See Local P-171,

Amalgamated Meat Cutters & Butcher Workmen of

N. Am. v. Thompson Farms Co., 642 F.2d 1065, 1070–71

the Federal Circuit over interlocutory orders of the CIT

granting injunctions (whether preliminary or, as here,

permanent).

50a

(7th Cir. 1981) (Wisdom, J.) (“At a minimum, claims cannot be separate unless separate recovery is possible on

each. Hence, mere variations of legal theory do not constitute separate claims.”) (cleaned up). Therefore, in dismissing Counts II and III without prejudice, we do not

improperly manufacture finality by dismissing nonfinal

separate claims.

Nevertheless, even where, as here, a plaintiff only

asserts one claim for Rule 54(b) purposes, a district court

or the CIT impermissibly “homebrews” appellate jurisdiction when it rejects one legal theory in support of that

claim and thereafter dismisses the plaintiff’s remaining

theories without prejudice to facilitate an immediate

appeal of what the parties agree is the most important

theory. See, e.g., First Health Grp. Corp. v. BCE Emergis

Corp., 269 F.3d 800, 801 (7th Cir. 2001) (Easterbrook, J.).

In such a situation, the case is nonfinal because the trial

court has not finally adjudicated the plaintiff’s claim for

relief.

But where, as here, a plaintiff asserts multiple theories in support of only a single claim for relief and the district court or the CIT grants all the requested relief based

on only one of the plaintiff’s asserted theories, attaining

finality does not require the court to also adjudicate the

plaintiff’s alternative theories for recovery on the same

claim. By granting the plaintiff all the relief that it could

possibly obtain in this action, the majority “ends the litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Weed v. Soc. Sec. Admin., 571

F.3d 1359, 1361 (Fed. Cir. 2009) (cleaned up and quoting

Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed.

Cir. 1986)); see also Electro-Methods, Inc. v. United

States, 728 F.2d 1471, 1474 (Fed. Cir. 1984) (decision

granting “the most important relief [plaintiff] sought” and

51a

“address[ing] (by denying) the other relief [plaintiff]

sought” was a “final decision . . . for all practical purposes”); cf. Ind. Harbor Belt R.R. Co. v. Am. Cyanamid

Co., 860 F.2d 1441, 1446 (7th Cir. 1988) (Cudahy, J., dissenting) (in a case with only a single claim for purposes of

Rule 54(b), “to ‘win’ a plaintiff need prevail on only one

theory, while to ‘win’ a defendant must prevail on all the

theories proposed by the plaintiff”). 6

For purposes of 28 U.S.C § 1291—and by extension 28

U.S.C. § 1295(a)(5)— “[f]inality is to be given a practical

rather than a technical construction.” Keith Mfg. Co. v.

Butterfield, 955 F.3d 936, 939 (Fed. Cir. 2020) (quoting

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171 (1974)).

There is no practical reason to “impose totally redundant

and indefensible burdens on . . . trial courts” by requiring

them to adjudicate “multiple theories . . . where one would

suffice.” Am. Cyanamid, 860 F.2d at 1448 (Cudahy, J.,

6

I note that the majority’s decision granting Plaintiffs’

motion for summary judgment as to Count I does not

moot Counts II and III. This is because “cases rather

than reasons . . . become moot.” Air Line Pilots Ass’n,

Int’l v. UAL Corp., 897 F.2d 1394, 1397 (7th Cir. 1990)

(Posner, J.). And of course, if a case consists of multiple

claims for Rule 54(b) purposes, one or more of such claims

might become moot, even if other claims in the case do not.

But this case consists of only one claim—Plaintiffs’ challenge to Proclamation 9980 based on three alternative

legal theories—and the majority’s decision in favor of

Plaintiffs as to one of their theories (Count I) does not render the other two theories (Counts II and III) moot, but

rather simply unnecessary to decide as a matter of judicial

discretion. If Counts II and III were moot, we would not

have Article III jurisdiction to decide them.

52a

dissenting). Like Judge Cudahy, I see no practical purpose in construing the finality requirement to require “the

plaintiff to fire additional bullets into the corpse of a

defendant he has already killed.” Id.

/s/ M. Miller Baker

M. Miller Baker, Judge

53a

APPENDIX D

In the

United States Court of Appeals

for the Federal Circuit

PRIMESOURCE BUILDING PRODUCTS, INC.,

Plaintiff-Appellee

v.

UNITED STATES, JOSEPH R. BIDEN, JR.,

PRESIDENT OF THE UNITED STATES, GINA M.

RAIMONDO, SECRETARY OF COMMERCE, TROY

MILLER, ACTING COMMISSIONER OF U.S.

CUSTOMS AND BORDER PROTECTION, UNITED

STATES CUSTOMS AND BORDER PROTECTION,

DEPARTMENT OF COMMERCE,

Defendants-Appellants

2021-2066

Appeal from the United States Court of International

Trade in No. 1:20-cv-00032-TCS-JCG-MMB, Senior

Judge Timothy C. Stanceu, Judge Jennifer Choe-Groves,

Judge M. Miller Baker.

OMAN FASTENERS, LLC, HUTTIG BUILDING

PRODUCTS, INC., HUTTIG, INC.,

Plaintiffs-Appellees

v.

54a

UNITED STATES, JOSEPH R. BIDEN, JR.,

PRESIDENT OF THE UNITED STATES, UNITED

STATES CUSTOMS AND BORDER PROTECTION,

TROY MILLER, ACTING COMMISSIONER OF U.S.

CUSTOMS AND BORDER PROTECTION,

DEPARTMENT OF COMMERCE, GINA M.

RAIMONDO, SECRETARY OF COMMERCE,

Defendants-Appellants

2021-2252

Appeal from the United States Court of International

Trade in Nos. 1:20-cv-00037-TCS-JCG-MMB, 1:20-cv00045-TCS-JCG-MMB, Senior Judge Timothy C. Stanceu, Judge Jennifer Choe-Groves, Judge M. Miller Baker.

ON PETITION FOR REHEARING EN BANC

Before MOORE, Chief Judge, NEWMAN, LOURIE, D YK,

PROST, REYNA , TARANTO , CHEN, HUGHES, STOLL, and

STARK, Circuit Judges. 1

PER CURIAM.

ORDER

Oman Fasterners, LLC, Huttig Building Products,

Inc., Huttig, Inc. and PrimeSource Building Products,

Inc. filed a petition for rehearing en banc. A response to

the petition was invited by the court and filed by Joseph

R. Biden, Jr., Commerce, Troy Miller, Gina M. Raimondo,

United States Customs and Border Protection and the

1

Circuit Judge Cunningham did not participate.

55a

United States. The petition was first referred as a petition to the panel that heard the appeal, and thereafter the

petition was referred to the circuit judges who are in regular active service.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue June 29, 2023.

FOR THE COURT

June 22, 2023

Date

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Acting Clerk of Court

56a

APPENDIX E

19 U.S.C. § 1862

(Section 232 of the Trade Expansion Act)

§ 1862. Safeguarding national security

(a) Prohibition on decrease or elimination of duties or

other import restrictions if such reduction or elimination would threaten to impair national security

No action shall be taken pursuant to section 1821(a) of

this title or pursuant to section 1351 of this title to

decrease or eliminate the duty or other import

restrictions on any article if the President determines that

such reduction or elimination would threaten to impair the

national security.

(b) Investigations by Secretary of Commerce to determine effects on national security of imports of articles; consultation with Secretary of Defense and other

officials; hearings; assessment of defense requirements; report to President; publication in Federal

Register; promulgation of regulations

(1)(A) Upon request of the head of any department or

agency, upon application of an interested party, or upon

his own motion, the Secretary of Commerce (hereafter in

this section referred to as the “Secretary”) shall immediately initiate an appropriate investigation to determine

the effects on the national security of imports of the article

which is the subject of such request, application, or

motion.

(B) The Secretary shall immediately provide notice to

the Secretary of Defense of any investigation initiated

under this section.

57a

(2)(A) In the course of any investigation conducted

under this subsection, the Secretary shall-(i) consult with the Secretary of Defense regarding the methodological and policy questions raised in

any investigation initiated under paragraph (1),

(ii) seek information and advice from, and consult

with, appropriate officers of the United States, and

(iii) if it is appropriate and after reasonable notice,

hold public hearings or otherwise afford interested

parties an opportunity to present information and

advice relevant to such investigation.

(B) Upon the request of the Secretary, the Secretary

of Defense shall provide the Secretary an assessment of

the defense requirements of any article that is the subject

of an investigation conducted under this section.

(3)(A) By no later than the date that is 270 days after

the date on which an investigation is initiated under paragraph (1) with respect to any article, the Secretary shall

submit to the President a report on the findings of such

investigation with respect to the effect of the importation

of such article in such quantities or under such circumstances upon the national security and, based on such

findings, the recommendations of the Secretary for action

or inaction under this section. If the Secretary finds that

such article is being imported into the United States in

such quantities or under such circumstances as to

threaten to impair the national security, the Secretary

shall so advise the President in such report.

(B) Any portion of the report submitted by the Secretary under subparagraph (A) which does not contain classified information or proprietary information shall be

published in the Federal Register.

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(4) The Secretary shall prescribe such procedural regulations as may be necessary to carry out the provisions

of this subsection.

(c) Adjustment of imports; determination by President; report to Congress; additional actions; publication in Federal Register

(1)(A) Within 90 days after receiving a report submitted under subsection (b)(3)(A) in which the Secretary

finds that an article is being imported into the United

States in such quantities or under such circumstances as

to threaten to impair the national security, the President

shall-(i) determine whether the President concurs with

the finding of the Secretary, and

(ii) if the President concurs, determine the nature

and duration of the action that, in the judgment of the

President, must be taken to adjust the imports of the

article and its derivatives so that such imports will not

threaten to impair the national security.

(B) If the President determines under subparagraph

(A) to take action to adjust imports of an article and its

derivatives, the President shall implement that action by

no later than the date that is 15 days after the day on

which the President determines to take action under subparagraph (A).

(2) By no later than the date that is 30 days after the

date on which the President makes any determinations

under paragraph (1), the President shall submit to the

Congress a written statement of the reasons why the

President has decided to take action, or refused to take

action, under paragraph (1). Such statement shall be

included in the report published under subsection (e).

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(3)(A) If-(i) the action taken by the President under paragraph (1) is the negotiation of an agreement which limits or restricts the importation into, or the exportation

to, the United States of the article that threatens to

impair national security, and

(ii) either-(I) no such agreement is entered into before

the date that is 180 days after the date on which

the President makes the determination under paragraph (1)(A) to take such action, or

(II) such an agreement that has been entered

into is not being carried out or is ineffective in eliminating the threat to the national security posed by

imports of such article,

the President shall take such other actions as the President deems necessary to adjust the imports of such article

so that such imports will not threaten to impair the

national security. The President shall publish in the Federal Register notice of any additional actions being taken

under this section by reason of this subparagraph.

(B) If-(i) clauses (i) and (ii) of subparagraph (A) apply,

and

(ii) the President determines not to take any additional actions under this subsection,

the President shall publish in the Federal Register such

determination and the reasons on which such determination is based.

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(d) Domestic production for national defense; impact

of foreign competition on economic welfare of domestic industries

For the purposes of this section, the Secretary and the

President shall, in the light of the requirements of

national security and without excluding other relevant

factors, give consideration to domestic production needed

for projected national defense requirements, the capacity

of domestic industries to meet such requirements, existing and anticipated availabilities of the human resources,

products, raw materials, and other supplies and services

essential to the national defense, the requirements of

growth of such industries and such supplies and services

including the investment, exploration, and development

necessary to assure such growth, and the importation of

goods in terms of their quantities, availabilities, character,

and use as those affect such industries and the capacity of

the United States to meet national security requirements.

In the administration of this section, the Secretary and

the President shall further recognize the close relation of

the economic welfare of the Nation to our national security, and shall take into consideration the impact of foreign competition on the economic welfare of individual

domestic industries; and any substantial unemployment,

decrease in revenues of government, loss of skills or

investment, or other serious effects resulting from the

displacement of any domestic products by excessive

imports shall be considered, without excluding other factors, in determining whether such weakening of our internal economy may impair the national security.

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(d) 1 Report by Secretary of Commerce

(1) Upon the disposition of each request, application,

or motion under subsection (b), the Secretary shall submit

to the Congress, and publish in the Federal Register, a

report on such disposition.

(2) Omitted

(f) 2 Congressional disapproval of Presidential adjustment of imports of petroleum or petroleum products;

disapproval resolution

(1) An action taken by the President under subsection

(c) to adjust imports of petroleum or petroleum products

shall cease to have force and effect upon the enactment of

a disapproval resolution, provided for in paragraph (2),

relating to that action.

(2)(A) This paragraph is enacted by the Congress-(i) as an exercise of the rulemaking power of the

House of Representatives and the Senate, respectively, and as such is deemed a part of the rules of each

House, respectively, but applicable only with respect

to the procedures to be followed in that House in the

case of disapproval resolutions and such procedures

supersede other rules only to the extent that they are

inconsistent therewith; and

(ii) with the full recognition of the constitutional

right of either House to change the rules (so far as

relating to the procedure of that House) at any time,

in the same manner, and to the same extent as any

other rule of that House.

1

So in original. Two subsecs. (d) have been enacted.

2

So in original. No subsec. (e) has been enacted.

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(B) For purposes of this subsection, the term “disapproval resolution” means only a joint resolution of either

House of Congress the matter after the resolving clause

of which is as follows: “That the Congress disapproves the

action taken under section 232 of the Trade Expansion

Act of 1962 with respect to petroleum imports under

_______ dated _______.”, the first blank space being filled

with the number of the proclamation, Executive order, or

other Executive act issued under the authority of subsection (c) of this section for purposes of adjusting imports of

petroleum or petroleum products and the second blank

being filled with the appropriate date.

(C)(i) All disapproval resolutions introduced in the

House of Representatives shall be referred to the Committee on Ways and Means and all disapproval resolutions

introduced in the Senate shall be referred to the Committee on Finance.

(ii) No amendment to a disapproval resolution shall be

in order in either the House of Representatives or the

Senate, and no motion to suspend the application of this

clause shall be in order in either House nor shall it be in

order in either House for the Presiding Officer to entertain a request to suspend the application of this clause by

unanimous consent.