DOJ, Cabinet Trade Group Move to Strike Part of Cabinet Exporter's Argument in AD Case

The Department of Justice and defendant-intervenor American Kitchen Cabinet Alliance moved to strike part of Chinese cabinet exporter's argument in an antidumping case, claiming the exporter included a new argument in a court filing that was not part of the underlying investigation. In dual April 22 motions to strike in the Court of International Trade, both DOJ and the AKCA said the argument by the exporter, The Ancientree Cabinet Co., over the proper classification of its inputs for wooden cabinets and vanities in selecting surrogate values for an antidumping investigation from a nonmarket economy was not raised during oral argument. A lawyer associated with the case confirmed Ancientree will file a response to the motion to strike.

The case centers on whether Commerce should have picked Malaysia or Romania when selecting a surrogate nation to evaluate comparable production costs in an antidumping investigation into wooden cabinets and vanities from China. Ancientree favors Malaysia for its comparable level of production in both quantity and product type. The Commerce Department prefers Romania for its more detailed financial statements. Following oral argument on the question (see 2104200067), Ancientree made an additional argument in its post-hearing brief that DOJ and AKCA said was not part of the exporter's original claims citing letters from Commerce in a separate proceeding.

Ancientree, using the separate letters from Commerce to demonstrate an agency practice of considering the nature of inputs in surrogate value submissions, argued that Commerce failed to consider the sawnwood inputs of wooden cabinets in the exporter's antidumping investigation. According to the submissions referenced in Ancientree's post-argument brief, the letters from Commerce did not reveal any new facts about the case but cited only what Commerce has done in the past. A lawyer associated with the case raised the question of why the government is concerned that the judge should not be allowed to view how Commerce comes to its decisions.

DOJ and AKCA conceded that striking something from the record is “generally disfavored” in the court. However, DOJ is hoping for a win given Ancientree's use of new documents. “The documents Ancientree now attempts to introduce to the Court were not a part of the underlying record of this proceeding, and Ancientree has not made the argument at issue at any point prior to this stage of litigation,” the DOJ's motion said. “Thus, it is inappropriate for plaintiff to raise this new argument and include non-record attachments in a second reply after oral argument.”