Cabinet Exporter Barred From Ministerial Error Allegation by Judicial Estoppel, Trade Group Says

A domestic trade group argued Aug. 26 that a Chinese cabinet exporter was barred from raising its ministerial error allegation by the doctrine of judicial estoppel (The Ancientree Cabinet Co. v. U.S., CIT # 23-00262).

The exporter alleged that, in an antidumping duty review, the Commerce Department had failed to increase its U.S. sales by the amount of a countervailed export subsidy received from the Chinese government; but that exporter has already managed to prevent much of that subsidy from being countervailed in a similar court proceeding, trade group American Kitchen Cabinet Alliance said.

Judicial estoppel applies when, first, a party’s later position is “clearly inconsistent with its earlier position”; second, the party has succeeded in having a court accept its earlier position, resulting in the perception that one court may have been misled if the later position is accepted by a different one; and third, “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped,” it said.

“In this case, [exporter] Ancientree claims that Commerce should adjust its export price by the full 10.54% subsidy rate for the [export buyer's credit] program from which it was found to have benefited in the countervailing duty investigation,” it said (see 2406030054). “In the earlier Dalian case, Ancientree argued that Commerce must find that its customers did not use the EBC program at all.”

Ancientree won in that case, with that case’s court ordering the department to reduce the exporter’s subsidy rate to account for Ancientree’s customers’ non-use certifications, it said. As a result, if this case were to order Commerce to account for the full 10.54% subsidy rate, that would imply that one of the two courts had made an error in calculating Ancientree’s countervailing duty, American Kitchen Cabinet Alliance said.

And Ancientree would unfairly benefit if both of its contrary positions were accepted, the trade group said, because it would profit from the apparent 10.54% countervailed subsidy in its antidumping duty review while not having to pay it in the countervailing duty one.

The cabinet group also argued that Ancientree hadn’t raised an actual ministerial error, but rather “difficult substantive and methodological issues for Commerce to address.”

A ministerial error is “an arithmetic or clerical error or an inadvertent mistake,” not a more complicated problem, such as “the inclusion or exclusion of certain figures in a calculation,” it said, citing a trade court case. The latter, however, is what Ancientree is putting forward as a ministerial error, it said -- Commerce’s failure to account for a 10.54% subsidy, “literally” a claim about what should be included in a calculation, it said.