The solicitor general's name on a petition before the Supreme Court carries a lot of weight all by itself. But when it is joined by the top lawyers for the Departments of State, Defense, Commerce and Energy, it is likely to get the full attention of the justices and their law clerks.
Those are the names on a petition that will be considered at the Court's conference this Friday for possible grant or denial as early as next week. The case, United States v. Eurodif, involves the import of low-enriched uranium (LEU), a critical ingredient in the production of nuclear power. Billed as the first time the United States has brought an anti-dumping case to the Supreme Court, it also gives the high court a chance to take a skeptical look at another ruling by the U.S. Court of Appeals for the Federal Circuit. (That court's patent decisions have not fared too well at the hands of the Supreme Court in recent years.)
The anti-dumping statute allows the imposition of special duties on foreign imports that are sold in the United States at less than fair value. When American utilities simply buy LEU from the enricher, no one disputes that the law comes into play. But in the case before the high court, the utilities sent unenriched uranium to the enricher, paid the enricher for "separative work units," and received back LEU.
The Federal Circuit, rejecting the view of the Commerce Department, ruled that this method of acquiring LEU amounts to the purchase of a service, not a product. Since the anti-dumping law does not cover the sale of services, no duties could be slapped on these imports.
Solicitor General Paul Clement, with the backing of the other Cabinet departments, says the ruling opens a "potentially gaping loophole" in U.S. trade law that would allow foreign sellers and domestic buyers of all kinds of products to avoid the law by structuring their transactions as contracts for services. It would also cause serious foreign policy concerns, interfering with an agreement with Russia to supply LEU by diluting material from nuclear weapons.
Also petitioning the Court on the same issue is the U.S. Enrichment Corporation, the only domestic enricher of uranium. Its brief, written by Sheldon Hochberg of Steptoe & Johnson, warns that the Federal Circuit ruling could "undermine the viability" of its enrichment plant.
On the other side, Caitlin Halligan of Weil, Gotshal & Manges represents Eurodif and other French companies that want to preserve the Federal Circuit decision. She says the LEU market is unique, so the ruling won't open the floodgates in other industries. She also says any policy concerns about the impact on agreements with Russia should be addressed to Congress.