CIT Lets Exporter Add Claim Against 'd' Test to AD Suit After CAFC Decision
The Court of International Trade on June 17 let exporter Toyo Kohan Co. amend its complaint in an antidumping duty case to add a claim against the Commerce Department's use of the Cohen's d test to detect "masked" dumping in light of the U.S. Court of Appeals for the Federal Circuit's decision rejecting Commerce's use of the test. Judge Jane Restani said the CAFC decision "fundamentally shifted the legal standard controlling" the agency's use of the test, meaning "justice requires" the exporter be allowed to raise its claim against the test.
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Toyo Kohan brought its suit to contest the 2022-23 review of the AD order on diffusion-annealed nickel-plate flat-rolled steel from Japan, arguing that Commerce erred in changing the date of sale for its U.S. transactions (see 2412230030). At no point during the review or before CIT to this point had the exporter challenged Commerce's use of the d test.
However, in April, the Federal Circuit in Marmen v. U.S. said Commerce can't use the test when the "underlying data is not normally distributed, equally variable, and equally and sufficiently numerous" (see 2504220030). The decision struck effectively eliminated the agency's ability to use the test, prompting Commerce to solicit suggestions on how to identify masked dumping moving forward (see 2504220030).
In light of Marmen, Toyo Kohan sought to amend its complaint to add a claim against the agency's use of the test in the challenged AD review. The U.S. opposed the motion on the grounds that the exporter failed to exhaust its administrative remedies on this point.
Restani sided with Toyo Kohan, finding that any attempt to challenge the agency's use of the d test in the review "would have been futile," since the CAFC hadn't yet settled the issue of how the test "could be applied properly, while Commerce adhered to the methodology faithfully after several opportunities to reconsider it." The Marmen decision shifted the legal standard for the test, which now allows Toyo Kohan to raise the issue, the judge said.
(Toyo Kohan Co. v. United States, Slip Op. 25-77, CIT # 24-00261, dated 06/17/25; Judge: Jane Restani; Attorneys: Daniel Porter of Pillsbury Winthrop for plaintiff Toyo Kohan Co.; Emma Bond for defendant U.S. government; James Cannon of Cassidy Levy for defendant-intervenor Thomas Steel Strip Corp.)