AD Petitioner Defends Reconsideration Bid in AD Case Over Lack of On-Site Verification
Plaintiffs in an antidumping duty case, led by Ellwood City Forge Co., aren't seeking to relitigate the issue of whether the Commerce Department should have conducted on-site verification during its administrative review but merely trying to frame a newly available piece of evidence, the plaintiffs argued in an Aug. 25 brief. Responding to arguments from the U.S. and exporter Metalcam, the plaintiffs said it's the U.S. and Metalcam that are seeking to relitigate issues, particularly the point of whether the plaintiffs raised the issue administratively (Ellwood City Forge v. United States, CIT #21-00073).
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The case concerns the antidumping duty investigation on forged steel fluid end blocks from Italy. In the investigation record, Ellwood City challenged the lack of verification at CIT (see 2201200032), whereas the U.S. argued that because Ellwood City failed to raise the verification question during the investigation, the matter should be dismissed. Judge Stephen Vaden agreed and dismissed the case (see 2206140044). Ellwood City then filed for reconsideration, arguing Commerce's remand results in a separate AD case, Bonney Forge, showed it would be futile to raise the point administratively (see 2207150049).
In its response motion, the government argued the court's dismissal ruling wasn't based on any error of fact or law or underlying error in the Commerce investigation. The U.S. said Ellwood City is attempting to relitigate its previously rejected claim that the court shouldn't have required exhaustion of administrative remedies because doing so would have been futile (see 2208120021). The U.S. characterized the Bonney Forge case as unadjudicated and unprecedented.
The plaintiffs, in reply, said that the U.S. failed to show why those two adjectives are relevant when considering the Bonney Forge case. Nothing is unsettled about the facts in that case, and the U.S. never said it had sufficient time to conduct on-site verification, unlike it did in the Bonney Forge action.
"The mere involvement of different companies or foreign countries is a distinction without any meaningful difference as to the question of whether it would have been futile to raise the verification argument in administrative case briefs," the brief said. "Defendant makes no suggestion that the public health situation had materially abated between Bonney Forge’s October 13, 2020, final determination and the October 20, 2020, due date for case briefs in this case such that Commerce could practically have undertaken on-site, in-country verification."
Further, the plaintiffs fended off the "relitigation" argument by claiming that they are doing no such thing, merely "framing a newly available piece of evidence in terms of earlier arguments" -- something the court rules expressly permit. The brief also argued that "administrative regularity" by itself isn't "a sufficient basis to decline to apply the futility exception here" -- the exception the plaintiffs are claiming since it supposedly would have been futile to bring up the issue administratively. "The sole issue yet-to-be decided is one of law, and as administrative briefing of this issue would have been fruitless in light of the Bonney Forge Redetermination, the Court should reach the merits of Plaintiffs’ argument by applying the futility exception to the exhaustion doctrine," the brief said.