Oman Fasteners, LLC v. United States, 20-00037

CourtU.S. Court of International Trade
Writing for the CourtStanceu, Judge
PartiesOMAN FASTENERS, LLC, et al., Plaintiffs, v. UNITED STATES, et al., Defendants.
Docket NumberSlip Op. 22-35,20-00037
Decision Date15 April 2022

OMAN FASTENERS, LLC, et al., Plaintiffs,

UNITED STATES, et al., Defendants.

No. 20-00037

Slip Op. No. 22-35

Court of Appeals of International Trade

April 15, 2022

[Ordering measures to protect potential government revenue pending defendants' appeal of previous judgment in litigation contesting a Presidential proclamation]

Andrew Caridas, Perkins Coie, LLP, of Washington, D.C., for plaintiff Oman Fasteners, LLC. With him on the submissions were Michael P. House, Shuaiqi Yuan, Jon B. Jacobs, and Brenna D. Duncan.

Meen Geu Oh, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendants. With him on the submissions were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Tara K. Hogan, Assistant Director.

Before: Jennifer Choe-Groves, Judge M. Miller Baker, Judge Timothy C. Stanceu, Judge


Stanceu, Judge

Plaintiff Oman Fasteners, LLC ("Oman Fasteners") and defendants jointly inform the court of their inability to reach agreement on the form in which measures may be taken to protect the revenue of the United States pending


defendants' appeal of our judgment in Oman Fasteners, LLC v. United States, 45 CIT __, 520 F.Supp.3d 1332 (2021) ("Oman Fasteners I"). The court orders plaintiff Oman Fasteners to make cash deposits on future entries of merchandise affected by this litigation, unless or until Oman Fasteners and defendants agree upon and implement bonding to secure potential government revenue, during the remainder of the stay pending defendants' appeal of our prior judgment.

I. Background

In PrimeSource Bldg. Prods., Inc. v. United States, 45 CIT __, 505 F.Supp.3d 1352 (2021) ("PrimeSource"), we held that a proclamation issued by the President of the United States ("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), in which the President imposed duties of 25% ad valorem on various imported products made of steel, including nails and other fasteners, was issued contrary to time limitations in Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862 ("Section 232")[1] and therefore beyond the authority to adjust tariffs that Section 232 delegated to the President.

In Oman Fasteners I, we granted summary judgment in favor of Oman Fasteners, who brought a claim essentially identical to that asserted in the PrimeSource litigation.


In the judgment, we ordered defendants to liquidate the entries affected by this litigation without assessment of the 25% ad valorem Section 232 duties, discontinue the then-existing obligation of plaintiffs to post bonding for such duties, and refund with interest any deposits of Section 232 duties that may have been made. Judgment 2 (June 10, 2021), ECF No. 108. Defendants filed a notice of appeal of our judgment. Notice of Appeal 4-5 (Aug. 7, 2021), ECF No. 110.

In Oman Fasteners, LLC v. United States, 45 CIT __, 542 F.Supp.3d 1399 (2021) ("Oman Fasteners II"), upon defendants' motion, we took several actions pending appeal. We stayed our order to liquidate the affected entries and refund with interest any deposits of Section 232 duties, enjoined the liquidation of the affected entries, and ordered defendants to confer with Oman Fasteners and co-plaintiffs Huttig Building Products, Inc. and Huttig, Inc. (collectively, "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 [the date of the entry of judgment], as is reasonably necessary to secure potential liability for duties and fees." Oman Fasteners II, 45 CIT at __, 542 F.Supp.3d at 1409.

In taking the actions to allow defendants to protect potential revenue from Section 232 duties pending the appeal of our judgment in Oman Fasteners I, we stated that the opinion 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), "causes us to conclude that defendants have made a sufficiently strong showing that they will succeed on the merits on appeal." Oman Fasteners II, 45 CIT at __, 542 F.Supp.3d at 1403. We concluded that defendants demonstrated, further, the likelihood of irreparable harm in the absence of the relief sought, explaining that the "harm is the loss of the authority, provided for by statute and routinely exercised by Customs [and Border Protection] in every import transaction, to require and maintain such bonding as it determines is reasonably necessary to protect the revenue of the United States." Id., 45 CIT at __, 542 F.Supp.3d at 1405-06. We also concluded that the remaining equitable factors, balancing of the hardships and the public interest, also favored allowing the government to exercise its authority to protect the revenue. Id., 45 CIT at __, 542 F.Supp.3d at 1407-08.

Plaintiffs and defendants reached agreement on bonding following our decision in Oman Fasteners II, and the special bonding arrangement for Section 232 duties continues to be in place for entries by Huttig. But as to entries by Oman Fasteners, the parties are no longer in agreement, and, according to...

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