Proceedings before the Court of International Trade (CIT) differ greatly from proceedings before the Commerce Department and the Commission. The most fundamental difference lies in the timetables for each. The Commerce Department and Commission have rigid statutory frameworks within which they must make their decisions. Beyond a certain point, extensions are not permitted. In contrast, CIT has the freedom to set its own schedule. Although different judges have different personal preferences for timing, they all allow extensions if the circumstances warrant. There is no ultimate deadline. Because of this fundamental difference, CIT litigation can drag on for years after the final Commerce Department and Commission decisions. With the exception of the summons and the complaint, all of the stages discussed below can be delayed indefinitely if the judge permits.

 

In addition, CIT proceedings are slightly more formal. The parties pay more attention to technicalities, and generally prepare more polished documents. The parties need the court's formal permission to take certain actions, such as delaying the submission of a brief.

 

File summons

 

The appeal starts when either the foreign company or the United States petitioner files a summons. The summons is a very short statement of an intent to start an appeal, which must be filed within 30 day of the publication of the anti-dumping order in the Federal Register. Sometimes both sides file appeals. The Commerce Department or Commission never starts the appeal, because it is the agency decision that is being challenged.

 

Recently, in administrative reviews the Department of Commerce had begun issuing liquidation instructions to Customs within 15 days of publication of its final results in the Federal Register. This practice effectively required parties to file their summons, complaint, and preliminary injunction motion immediately upon publication of the final results in the Federal Register. CIT, however, has found this practice to be in violation of the court's rules. As a result of the court's ruling, the Department appears to have suspended the practice of issuing liquidation instructions shortly after publication of the final results.

 

It is common to file what is known as a 'protective summons'. Under United States law, if one party files an appeal and the other side does not, the appeal is limited to those issues raised by the appealing party.

 

This rule sometimes places the non-appealing party at a disadvantage. There may be issues that the non-appealing party would like to raise, but that are not important enough to justify the expense of an appeal by themselves. If the party has to participate in an appeal anyway, however, it might be interested in raising these issues.

 

To avoid finding themselves in this dilemma - forced into an appeal, but not being able to raise the issues of interest - foreign companies sometimes file a summons even though they do not intend to follow up the appeal. During the period between the summons and the complaint, the lawyers can confirm the intentions of the other parties. The cost of filing the summons is minimal - just a few hundred dollars - and filing the summons protects the company's ability to raise its own issues if the other side decides to appeal.

 

File complaint

 

Within 30 days after the summons, the appealing party must file a complaint. The complaint is a longer document that describes the basic facts and lists the various issues the party wishes to raise. It does not include a detailed explanation of the argument. If both sides have appealed different issues, both sides must file their own complaints.

 

Intervention by other parties

 

If one side files an appeal, the other side may intervene in the lawsuit. Thus, even if the foreign company does not want to bring its own complaint, it can intervene in the lawsuit filed by the domestic industry to protect its own interests.

 

Such intervention is quite common if a foreign company has benefited from some agency decision. In theory, the United States Government will defend itself. In practice, however, the quality of the defence can vary enormously. Depending on the skill and workload of the government attorneys, they may do a good job or a bad job. Foreign companies often decide that they want to have their own lawyers intervene, to help ensure that the favourable decision is well defended in court.

 

Administrative record

 

After the complaint has been filed, the Commerce Department or the Commission files the administrative record with the court. The administrative record is the collection of all the papers submitted to the Commerce Department or the Commission during the course of the investigation. It includes all the formal submissions as well as all the documents collected by the Commerce Department at the verification, or collected by the Commission during its injury investigation. This collection of papers is the basis on which CIT makes its decisions.

 

In theory, the agency should file the administrative record within 40 days after the complaint is filed. The agencies generally try to meet this deadline, but often must ask for an extension. The delay results from several factors. First, preparing the record is not particularly easy, or enjoyable, work. The staff avoid this work whenever possible. Second, the staff is often too busy meeting the strict deadlines on other ongoing investigations to worry about the flexible deadlines for the CIT litigation. Third, the judges on CIT have been very willing to grant repeated extensions to file the administrative record. As a practical matter, the agency usually files the record 60-90 days after the summons is filed.

 

Discovery

 

CIT appeals of trade remedy decisions generally do not involve discovery. This fact surprises many foreign companies with experience with normal litigation in the United States, in which discovery is almost the entire process. CIT appeals are administrative litigation, and in most cases the judge must limit consideration to the information that was before the agency the administrative record.

 

In theory, a party can seek to supplement the administrative record - for example, by taking the deposition of the Commerce Department staff who made the decisions. CIT, however, has been extremely protective of the Commerce Department and the Commission. Various legal doctrines say that courts should not allow litigants to probe into the internal decision-making of the agency. The Commerce Department and the Commission, with the CIT's approval, have used these doctrines to avoid discovery. Efforts to convince the court to make exceptions have been largely unsuccessful. But in a particular case, if the circumstances were extreme enough, it might be worth trying to take discovery.

 

Summary judgement and other briefs

 

Once the administrative record has been filed, the appealing party can begin to prepare its motion for summary judgement. Known technically as a 'rule 56.2 motion', this document presents all the factual and legal arguments that the party believes supports its claim that the Commerce Department or the Commission made mistakes. The document is often very long-sometimes over 100 pages - and very detailed.

 

The timing of this brief can vary. The parties agree to a scheduling order in which all of the relevant deadlines for briefs are set forth. The complaining party generally receives 60 days to file its brief. Extensions are permitted, but only for good reason.

 

Once this motion for summary judgement is filed, the other side then has at least 60 days to file its response brief. The precise timing is usually set forth in the scheduling order. This response brief lists all of the arguments - factual and legal - in opposition to the arguments made by the other side.

 

The appealing party then files its reply brief. Again, the precise timing is set forth in the scheduling order, but usually the appealing party has 25 days for this brief. The time may be longer if the parties have negotiated deadlines to avoid conflicts with holidays or other work commitments. This brief is limited to rebutting the arguments made in the response brief, and elaborating on themes from the original brief. The appealing party cannot now raise new arguments.

 

Although this explanation seems easy, the realities of actual litigation are often more complex. Various parties ask for extensions. Other issues may arise. One party may decide to add a new claim later in the litigation, which the court can allow as long as the other side does not suffer any prejudice. Actual cases may have various different wrinkles, which are beyond the scope of this section.

 

Oral arguments

 

After the briefs have been filed, most cases involve an oral argument before the judge. This oral presentation allows both sides to focus their arguments. More importantly, the oral argument offers the judge the opportunity to question the parties, and explore each side for weaknesses. Often the oral argument can be the crucial stage at which one side persuades the judge to accept its position in the litigation.

 

CIT decision

 

After the oral argument, the judge makes a decision. Some judges decide quickly; others take quite a long time. There is no deadline. It is not unusual to wait 6-12 months for the judge's decision.

 

Appeal to CAFC

 

Decisions by CIT can be appealed to the Court of Appeals for the Federal Circuit (CAFC). In many cases, the parties stop after the CIT stage. But if the issue is very important to either party, that party can continue the process to the next stage.

 

Historically, CAFC has been more deferential to the agency decision-making, whereas CIT often disagrees with the agency decision. If the agency feel strongly about its decision in a particular case, it appeals to CAFC, where it finds a more sympathetic audience.

 

More recently, however, even CAFC has begun to express some scepticism about agency decisions that seem to go too far. For example, CAFC recently has ruled:

 

- The Commission must carefully consider the impact of imports not subject to investigation, and cannot assume that all of the harm being suffered by the domestic industry is due to the imports that are being investigated.

- The Commerce Department cannot abuse 'facts available', and can only resort to this form of punishment when the proceedings show that the agency genuinely asked for the information it says that it needs.

 

These examples illustrate that CAFC can reverse agency decisions when it feels the legal basis for doing so is strong enough.

 

Source: Business Guide to Trade Remedies in the United States: Anti-dumping, countervailing and safeguards legislation practices and procedures