Government Absent From Appeal on Commerce Judgment in Antidumping Duty Case

Despite hotly contested litigation in the lower court, the Justice Department has been notably absent from an appeal of an antidumping case initially brought by exporter Goodluck India Limited. During May 3 oral argument in front of the U.S. Court of Appeals for the Federal Circuit, counsel for a group of tubing producers appealing the case refused to speculate on the government's lack of participation in the case but did point out that the Commerce Department did file its remand determination under respectful protest in the initial Court of International Trade proceedings (Goodluck India Limited, v. U.S. et al., Fed. Cir. # 2020-2017).

On April 30, 2020, following a court-ordered remand instructing Commerce to include sales and cost data that Goodluck initially submitted past a regulatory deadline, CIT sustained the agency's finding of a zero percent antidumping rate on cold-drawn mechanical tubing from India. Judge Gary Katzmann initially ruled in the case that Commerce unfairly penalized the exporter with an unfairly high antidumping duty rate after Goodluck notified Commerce of minor errors in the sales and cost data. Failing to change Katzmann's mind, the group of tubing producers then took their argument to the Federal Circuit where they continue to argue that the consideration of the data was not a mere correction of the record but entirely new factual information.

However, the government has not appeared in the Federal Circuit case to aid the producer group in its appeal attempt. "The record doesn't say why the government isn't here, and I'd be speculating to give a reason why they decided not to show up, but the record does show that the Commerce Department made a detailed explanation why they thought it was right in its original decision," the producer group's counsel Robert Luberda of Kelly Drye said. "It defended it vigorously at the court, and when it submitted its remand determination based on it being ordered by the court below to accept that information, it did so under respectful protest. It would be speculation for me to conclude why they elected to do that.

"It was a surprise to us as well, your honor, but both parties have equally important rights that need to be protected here in making sure information is placed on the record in an orderly fashion of which we have full evidence of participation."