CIT Strikes Down Rehearing Bid in Case Over Lack of On-Site Verification

The rehearing motion from plaintiffs in an antidumping duty case, led by Ellwood City Forge, "appears to be little more than an impermissible attempt to relitigate an argument" already dispatched by the Court of International Trade, Judge Stephen Vaden held in a Nov. 8 opinion. Ellwood City sought reconsideration of the court's order tossing the challenge to the Commerce Department's failure to conduct on-site verification during an antidumping review, given that the plaintiffs failed to broach the topic administratively. Vaden said that Ellwood City misunderstood "the nexus between futility" and the requirement to exhaust administrative remedies.

The case concerns the antidumping duty administrative review on forged steel fluid end blocks from Italy. In the investigation record, Ellwood City challenged the lack of verification at CIT (see 2201200032), whereas the U.S. argued that because Ellwood City failed to raise the verification question during the investigation, the matter should be dismissed. Vaden agreed and dismissed the case (see 2206140044). Ellwood City then filed for reconsideration, arguing Commerce's remand results in a separate AD case, Bonney Forge, showed it would be futile to raise the point administratively (see 2207150049).

In its response motion, the government argued the court's dismissal ruling wasn't based on any error of fact or law or underlying error in the Commerce investigation. The U.S. said Ellwood City is attempting to relitigate its previously rejected claim that the court shouldn't have required exhaustion of administrative remedies because doing so would have been futile. The U.S. characterized the Bonney Forge case as unadjudicated and unprecedented. Vaden agreed.

"Though 19 C.F.R. § 351.309(c)(2) delineates the last opportunity for a party to raise a relevant argument it hopes to preserve for court review, it is by no means the first or only opportunity for a party to object to Commerce’s chosen procedures," the opinion said. "... As Commerce aptly stated in its response brief, 'Ellwood not only failed to raise its newly alleged grievances in its case briefs, it failed to raise them at all.'

"The squeaky wheel gets the grease, but Ellwood City chose to be as quiet as a church mouse," Vaden said. "The remand results in Bonney Forge -- if they could be considered here -- would offer Ellwood City no respite. A party that completely fails to object is not in the same position as one who made an effort to do so. Plaintiffs have simply reiterated the futility argument they made previously, which is not an appropriate ground for reconsideration."

(Ellwood City Forge Co. v. United States, Slip Op. 22-123, CIT #21-00073, dated 11/8/22, Judge Stephen Vaden. Attorneys: Thomas Beline of Cassidy Levy for plaintiffs; Sarah Kramer for defendant U.S. government; Douglas Heffner of Faegre Drinker for defendant-intervenor Metalcam)