CIT Should Deny Rehearing Bid Involving 'Alternative Arguments,' Issues Not Raised on Remand, DOJ Says

The Court of International Trade should deny Chinese exporter Jangho Group's bid for a rehearing in a countervailing duty case filed to contest Commerce's alleged failure to address the company's alternative arguments, the U.S. said in a March 9 reply brief. Jangho last raised the "long gone" arguments in 2019, and failed to raise its alternative arguments in its post-remand brief, meaning they are "waived" and thus not eligible for further litigation, DOJ argued (Taizhou United Imp. & Exp. Co. v. United States, CIT Consol. #16-00009).

Initially brought by Taizhou United, the case concerns the 2013 administrative review of the CVD order on aluminum extrusions from China. In a prior opinion the court sustained Commerce's position on nearly all the contested issues but remanded the agency's decision to countervail subsidized purchases of glass and aluminum extrusions. On remand, Commerce continued to find that the glass purchases are countervailable, even though they weren't used in the subject aluminum extrusions. Judge Leo Gordon upheld this position in February, finding the glass input is countervailable (see 2202180042).

In response, five of the plaintiff-intervenors, all affiliated with Jangho, filed for relief from judgment and for rehearing on claims that Jangho says the court didn't address. Jangho argued that even if Commerce can countervail glass, the record doesn't support Commerce's finding that the suppliers are government entities, a benefit was provided or any benefit was specific in nature.

The U.S. issued its response in opposition to this motion, pointing out that even Jangho admits that it did not pursue these arguments during the court's remand period. "By the time that the Court entered judgment in 2022, Jangho’s alternative arguments were long gone," the brief said. "Indeed, it is well-settled that all litigants have the responsibility to raise issues at the appropriate time on pain of waiver. ... Therefore, Jangho’s alternative arguments 'must be deemed waived.' Given that Jangho’s alternative arguments were last raised in 2019 and long since had been abandoned, the Court did not err when entering a final judgment without addressing them."