CAFC Keeps Oral Argument Date Despite US Bid for Remand on 'd' Test Issue
The U.S. Court of Appeals for the Federal Circuit on Nov. 25 denied the government's motion to cancel oral argument in a case involving the Commerce Department's use of the Cohen's d test to detect masked dumping. In a per curiam order, the court said the parties "should plan to focus on" the government's motion for a voluntary remand "at argument" (Mid Continent Steel & Wire v. United States, Fed. Cir. # 24-1556).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The U.S. asked for a voluntary remand in light of the CAFC's decision in Marmen v. U.S., invalidating the agency's approach to the Cohen's d test (see 2511240015). Specifically, in Marmen, the court said Commerce can't use the d test when the "underlying data is not normally distributed, equally variable, and equally and sufficiently numerous" (see 2504220030). Since this ruling, the agency has sought out new ways to detect masked dumping, including through a new "price differences test" (see 2509030070).
The appellants, led by exporter PT Enterprise, opposed the motion for remand, though the companies said the court should cancel the oral argument, which was set for Dec. 1, and reschedule it for a later date. The court kept the Dec. 1 oral argument date.
In opposing the voluntary remand, PT Enterprise said it has consistently acknowledged that the d test "makes sense" and "conforms to judicial precedent," assuming Commerce modifies the test by basing the denominator on "(1) a weighted average of the standard deviations (“SD”) of the Test subgroup and Comparison subgroup; or (2) a single standard deviation of all sales."