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This morning the Federal Circuit granted en banc rehearing in Sunpreme v. United States, a trade case. The en banc court simultaneously issued a new opinion in the case, vacating the panel’s decision and effectively reversing it in relevant part. We have the details.

As explained in today’s opinion, the question presented to the en banc Court was “whether it is within [the U.S. Customs and Border Protection]’s authority to preliminarily suspend liquidation of goods based on an ambiguous antidumping or countervailing duty order, such that the suspension may be continued following a scope inquiry by [the U.S. Department of] Commerce.” The en banc court held, simply, that “it is.”

As explained by the en banc court in an opinion authored by Chief Judge Prost, the Court of International Trade had “vacated Commerce’s instructions in-part, holding that the suspension of liquidation could not lawfully cover [goods] entered prior to the initiation of a formal scope inquiry.” Moreover, “[a] panel majority of [the Federal Circuit] agreed.” But the en banc court held otherwise, explaining that it would “break from the CIT and the prior panel opinion in this case, and now hold that Customs did not exceed its authority by ordering the suspension of liquidation based on its interpretation of the Orders.”

The en banc court pointed to the “the clear and unambiguous terms of the relevant regulation,” which according to the opinion explains that “when Commerce conducts a scope inquiry ‘and the product in question is already subject to suspension of liquidation, that suspension of liquidation will be continued‘ pending the final scope ruling.” (quoting 19 C.F.R. § 351.225(l)(1) (emphasis added by the court).

Furthermore, the en banc court did “not agree that either of the [Federal Circuit] cases relied upon [by the CIT and Sunpreme] prohibit Customs from suspending liquidation based on an ambiguous order.”

Finally, while the court noted that its “decision in this case is driven by the law, and not by policy considerations,” it went on to note that “when a policy is declared in a statute, we must consider and ‘follow the policy Congress has prescribed.’” (citing SAS Inst., Inc. v. Iancu). The court then explained that “Sunpreme’s limited view of Customs’s authority runs afoul of the policy declared in the Tariff Act, which instructs the government to ‘provide, to the maximum extent practicable, for the protection of revenue.’” (citing 19 U.S.C. § 1484(a)(2)(C)).

Notably, the panel’s now withdrawn majority opinion was authored by Judge Clevenger and joined by Judge Lourie, with Chief Judge Prost dissenting in relevant part. Judge Clevenger, as a senior circuit judge, was “eligible to participate as a member of an en banc court reviewing a decision of a panel of which that judge was a member,” Internal Operating Procedure 14.7, but evidently elected not to participate. Moreover, Judge Lourie evidently changed his mind given that he voted with the unanimous court in granting rehearing and joining the en banc opinion. Finally, Judge Wallach did not participate in the en banc order or opinion, presumably a result of a recusal. As a result of all these machinations, as noted, Chief Judge Prost authored a unanimous (11-0) opinion for the en banc court consistent with her dissent in the original panel consideration of the case.