CIT Invalidates President Trump’s Section 232 Tariffs on Steel and Aluminum “Derivative Articles”

On April 5, 2021, the U.S Court of International Trade (CIT) published a summary judgment opinion invalidating former President Donald Trump’s executive order, Proclamation 9980, which imposed 25 percent tariffs on various imports of aluminum and steel derivative articles pursuant to Section 232 of the Trade Expansion Act of 1962. The CIT found in favor of plaintiff PrimeSource Building Products, Inc., a U.S. importer of various steel derivative products, which argued that Proclamation 9980 was issued after a key statutory deadline in the proceeding.

In January 2021, the CIT dismissed all claims but one in PrimeSource Building Products, Inc. vs. United States, et al., finding that a “genuine issue of material fact” existed for the remaining claim concerning the issuance of Proclamation 9980 after a statutory deadline established following the submission of the Department of Commerce’s Section 232 investigative report to the president. See Update of January 28, 2021, for additional background on the case and prior CIT dismissal of the other claims. At the time of its January 27, 2021 order, the CIT instructed the parties to submit by February 26, 2021, a joint scheduling report for briefing the remaining claim. Instead of filing a joint schedule, the parties on March 5, 2021 filed a joint status report, stating that the defendants “expressly waived ‘the opportunity to provide additional factual information that might show that the essential requirements of [the relevant statutory provision]’ were met.” The parties instead agreed that there was no reason for the CIT to delay any final judgment.

Since the defendants declined to present additional evidence and did not previously address that issue, the CIT found that the “defendants having waived any argument that Proclamation 9980 was issued within the 105-day time period beginning on the President’s receipt of [the Section 232 Steel Report], there are no contested issues of fact.” The CIT issued summary judgment, declaring Proclamation 9980 “invalid as contrary to law” and directed that all entries affected by this litigation be: (i) liquidated without the assessment of duties if still pending; and (ii) refunded if such duties have already been collected and liquidated.

The U.S. government is expected to appeal the CIT decision to the U.S. Court of Appeals of the Federal Circuit, relying on the dissenting opinion of CIT Judge Miller Baker.