CIT Denies Importer Attorney's Fees for CBP's Alleged Failure to Consolidate EAPA Proceedings
The Court of International Trade on June 17 denied importer Global Aluminum Distributor's motion for attorney's fees in an Enforce and Protect Act case. Judge Richard Eaton held that the government's position in the EAPA case was "substantially justified" (H&E Home v. United States, CIT Consol. # 21-00337).
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Global's bid for attorney's fees was based on CBP's decision not to consolidate two EAPA cases that both looked at whether various U.S. importers evaded the antidumping duty and countervailing duty orders on aluminum extrusions from China via the Dominican Republic. Eaton said he's "not convinced that the singular decision of whether to consolidate investigations at the agency level, even if misguided, has the capacity to undermine the substantial justification of the Government’s position" for the purposes of awarding attorney's fees.
At issue are two EAPA cases both involving claims of transshipment through the facilities of Dominican exporter Kingtom Aluminio. Global's suit regarding one of the EAPA cases, proceeding number 7423, was stayed pending resolution of litigation on the other investigation, number 7348. In both CIT cases, CBP asked for a voluntary remand and ultimately switched an affirmative evasion finding to a negative evasion determination (see 2407100048).
After the negative evasion findings were approved by the trade court, Global moved for attorney's fees, claiming that it had to pay duplicative legal fees due to CBP's failure to consolidate the two EAPA cases (see 2410080057). The importer said the investigations should have been consolidated, since they involved the same supplier and AD/CVD orders, however, the company said at oral argument that the individual cases, taken separately, "might have been substantially justified."
The U.S. provided various reasons for its decision not to consolidate the proceedings, including the fact that the two proceedings were already consolidations of various other investigations and the fact that there wasn't universal overlap of the parties involved in the cases. Most important to the government's defense, however, was the fact that the different deadlines in the two proceedings to set interim measures "substantially justified the decision not to consolidate," the court said.
Since EAPA 7348 was opened before EAPA 7423, "had Customs consolidated the two investigations, EAPA 7423 would have been subject to the deadline for the imposition of interim measures in EAPA 7348," the court noted. Consolidation would have meant CBP only had two days to decide on interim measures for the EAPA proceeding contested by Global, the court said. While the interim measures "were largely the same in both cases," CBP reasonably chose not to consolidate the investigations "when faced with the possibility of deciding whether to impose interim measures in two days instead of the full 90-day statutory period," the court said.
To defend its motion, Global cited a list of "bad acts" by CBP, which included the decisions to open the investigation, not consolidate the proceedings and omit certain documents from the record. Eaton said the term "bad acts" has "no special meaning under the" Equal Access to Justice Act, which allows prevailing parties to recover attorney's fees, and isn't necessarily related to "whether a position is substantially justified." The importer merely lists these "bad acts" without giving CIT "any reason to believe" that the acts "somehow mean that the Government's case was not substantially justified, the judge said.
The question before the court is whether CBP's position "as a whole" had "substantial justification," the court clarified. Even if CBP was wrong not to consolidate the cases, "that would have little to do with whether its case was 'as a whole' substantially justified," the court said.
In all, Eaton agreed with the U.S. that CBP "faced a novel situation when considering the allegations under the EAPA," since the "law itself was relatively new and the proceedings involving Global were among the first to be considered." Due to this "novelty, the Government’s position is further made reasonable by the fact that it voluntarily asked for a remand to reevaluate its evasion determination before litigating the case," Eaton held.