Plywood Importer Seeks Reconsideration of CIT Ruling Upholding Circumvention Finding
Importer InterGlobal Forest alleged at least eight errors in the Court of International Trade's July ruling upholding a Commerce Department finding that three plywood importers evaded antidumping duty and countervailing duty orders on plywood from China (see 2507100044), and it asked for an adverse inference against the government for “suppressing evidence in flagrant violation” of an earlier remand order (American Pacific Plywood v. United States, CIT Consol. # 20-03914).
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InterGlobal also claimed the trade court committed a due process violation by striking its reply to a U.S. brief opposing the importer’s motion to have CIT take judicial notice of several items from other proceedings (see 2504170053). It was authorized to file that reply by the “plain language” of CIT Rule 7(a), it said.
The importer first challenged Judge M. Miller Baker’s ruling that it had waived an argument that its imported plywood was outside the scope of AD/CVD orders because “the orders only cover plywood containing ‘at least three plies.’” The judge observed that InterGlobal “appears to contend that its imports contained fewer than three plies and thus were out-of-scope,” but that “it cites no record evidence for this proposition” and hadn’t argued the point administratively.
But InterGlobal said Baker had misunderstood the argument. It said it was arguing, rather, that its Cambodian exporter, LB Wood, hadn’t imported any Chinese-origin three-ply plywood to use in its production processes; it said this argument has already seen “extensive litigation.” The importer added that the point “did not need to be explicitly restated because as a matter of law, anything less than three plies is not covered merchandise.”
Next, it said CIT “mischaracterized” one of the items for which InterGlobal sought judicial notice. It claimed the court incorrectly referred to the item, a Jan. 16 stipulated judgment between the U.S. and Richmond International Forest Products, another importer that purchased from LB Wood, as a “settlement.”
The importer then challenged Baker’s statement that “Customs concluded that InterGlobal’s Cambodian supplier, LB Wood, ‘could not have produced’ all the plywood it claimed to have made in that country.” This was “not fact,” InterGlobal said, but rather “a false conclusory argument maintained uniquely by the Government’s attorneys whom CBP disagrees with.”
“The entire decision rests upon the existence of this single false ‘fact,'” it claimed. “The parties irrefutably agree the fact is that CBP’s investigation found that the plywood manufactured by plaintiff-intervenor LB Wood in Cambodia is of Cambodian origin.”
InterGlobal also argued that the government was judicially estopped from asserting it circumvented the Chinese plywood AD/CVD orders by that Jan. 16 stipulated judgment, calling the U.S. positions in the two proceedings “complete opposites.” In that Jan. 16 judgment, it agreed imports purchased by Richmond International from LB Wood were of Cambodian origin, but reached a different conclusion regarding imports purchased by InterGlobal, the importer said.
It next claimed that the court’s opinion "disregarded res judicata" -- the principle that an issue can't be relitigated once it has been judged on its merits in another action -- claiming privity with Richmond International. It followed that up with separate collateral estoppel and stare decisis claims.
Finally, it called the court’s refusal to take judicial notice of the Jan. 16 stipulated judgment “clear error,” saying that the judgment couldn’t have been included on the administrative record. It also claimed that “a court can go outside the administrative record when there is a strong showing of bad faith or improper behavior, both of which are present here.”