DOJ Wrong to Oppose Rehearing Bid Over 'Alternative Arguments,' Exporters Argue at CIT

The U.S.'s opposition to a rehearing motion from a Chinese aluminum extrusion exporter and its affiliates over their alternative arguments in a countervailing duty case falls flat, the company and its affiliates said in an April 25 reply brief at the Court of International Trade (Taizhou United Imp. & Exp. Co. v. United States, CIT Consol. #16-00009). DOJ argued against the rehearing bid, claiming that the alternative claims were waived since they were not brought up during remand. The plaintiff-intervenors, all associated with Jangho Group, replied that the court said it would address a separate issue first, then move to the alternate claims. The court's failure to do so warrants a rehearing, the brief said.

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. Judge Leo Gordon, however, 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. Gordon upheld this position in February, finding the glass input is countervailable (see 2202180042).

In response, five of the plaintiff-intervenors filed for relief from judgment and for rehearing on claims that Jangho says the court didn't address (see 2203070030). 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. DOJ argued that the bid should be denied since the issues were not raised on remand.

"The short answer to Defendant’s argument is that, as the Court found in [Taizhou I] it was not appropriate to address Jangho’s alternative claims until the input issue was finally decided," the brief said. "That final decision on the input issue did not come until the Court issued its decision in [Taizhou II]. Therefore, the appropriate time to address Jangho’s alternative arguments was after the court issued its final decision on the input issue, not before."

The plaintiff-intervenors further argued that it is "surprising" that the U.S. would claim that a court order remanding one issue for reconsideration would reopen the proceeding to allow other issues outside the scope of the remand to be raised. "Such an approach would impose enormous costs and uncertainty on the course of agency proceedings," the brief said.