Commerce Violated Its Due Process Rights After It Was Reinstated Under AD Order, Exporter Tells CIT

The Commerce Department illegally failed to give exporter Goodluck India a chance to request a review after it was reinstated as subject to an antidumping duty order, Goodluck argued in a Jan. 3 motion for judgment at the Court of International Trade. After the trade court settled a jurisdictional issue in the case, the exporter in a new motion for judgment argued that Commerce violated the law by assessing duties at the adverse facts available rate and deciding that the AFA cash deposit rate became effective on Sept. 10, 2021 -- 10 days after the U.S. Court of Appeals for the Federal Circuit provisionally revoked the order as to Goodluck (Goodluck India Limited v. United States, CIT # 22-00024).

The case concerns the antidumping duty investigation on cold-drawn mechanical tubing of carbon and alloy steel from India. Goodluck participated in the initial investigation, getting hit with a 33.7% AFA cash deposit rate. The respondent then challenged the decision at CIT, which eventually overturned Commerce, affirming a final zero percent margin for Goodluck. The result was Commerce revoking the AD order for the exporter.

The case was then appealed to the Federal Circuit, where the decision to revoke the order for Goodluck was reversed. The order was reinstated and along with it the 33.7% cash deposit rate. But during this time, Commerce began the second and third administrative reviews of the AD order. Commerce instructed CBP to liquidate Goodluck's entries subject to the third administrative review at the 33.7% rate -- a move Goodluck now contests since it says it was not subject to the order at the time the review was initiated (see 2201310039).

Goodluck filed its case under sections 1581(c) and (i), leading DOJ to file a partial motion to dismiss the Section 1581(c) claims. While the respondent did not oppose the motion, it wanted jurisdiction solidified under Section 1581(i). In the case's first opinion, the trade court ruled that the question before the court "is whether a party may move to dismiss one of the alternatively pleaded grounds of jurisdiction." The court denied the motion, finding the motion "as styled is not the proper vehicle" (see 2212010024).

With the jurisdictional question out of the way, Goodluck filed its motion for judgment. The exporter argued that Commerce illegally told CBP to liquidate the entries subject to the third review at the AFA rate, since the agency never gave Goodluck a chance to request a review of its entries after the revocation was reversed and the order was reinstated, violating the agency's established practice and the exporter's due process rights.

"Commerce in AR3 did not follow its agency practice reflected in Ball Bearings, Xanthan Gum, and AR2 of the ADD Order on CDMT from India," the brief said. "Doing so would have resulted in Commerce offering interested parties the opportunity to request a review of AR3 entries of CDMT produced and exported by Goodluck at the next anniversary month -- i.e., in June 2022 when review requests were due for the subsequent, fourth administrative review. ... Yet Commerce refused to provide any opportunity for interested parties to request such a review in AR3, despite being specifically asked to do so in accordance with agency practice."

The agency failed to afford the exporter "the most rudimentary of process required," by depriving it of a notice and an opportunity to be heard, Goodluck claimed. "Indeed, Defendant appears to concede the impropriety with which Commerce acted when denying Goodluck’s opportunity to provide substantive argumentation," the brief said. "... Goodluck pled alternate jurisdictional bases because of Commerce’s characterization of the decisional document... . ... This concession establishes that the ministerial error regulation did not apply to the issues challenged by Goodluck, despite being relied upon by Commerce as a basis to decline consideration of the substantive challenges raised in this appeal. ...

"Defendant cannot have it both ways; if the [third review decision] was not an amended final [less than fair value] determination for purposes of the challenged actions, then Commerce was required to have responded to Goodluck’s substantive arguments thereon. This being the case, Commerce acted unlawfully by failing to allow for such consideration."