holding that the pure question of law exception “only might apply for a clear statutory mandate that does not implicate Commerce’s interpretation of the statute under the second step of Chevron .... The pure question of law exception cannot apply [where an agency has discretion] because its application would undermine the very purposes the exhaustion requirement is designed to protect”
How later courts described this case
- holding that the pure question of law exception “only might apply for a clear statutory mandate that does not implicate Commerce’s interpretation of the statute under the second step of Chevron .... The pure question of law exception cannot apply [where an agency has discretion] because its application would undermine the very purposes the exhaustion requirement is designed to protect”
- concluding that the pure legal question exception could not apply when the statute at issue did not speak to the required methodology and Commerce's interpretation was needed to fill the statutory gap
- applying the exception to a Chevron prong one issue that did not require further factual development
- rejecting plaintiffs assertion of futility defense to exhaustion because plaintiff “could have raised its arguments about potential unreasonable inconsistencies in Commerce’s zeroing practice in its administrative case brief’
Written by the judges who cited it.
The opinion
Slip Op 11-114
UNITED STATES COURT OF INTERNATIONAL TRADE
FUWEI FILMS (SHANGDONG) CO.,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Consol. Court No. 11-00061
UNITED STATES,
Defendant.
MEMORANDUM and ORDER
[Motion to amend complaint denied.]
Dated: September 8, 2011
Riggle and Craven (David J. Craven and David A. Riggle) for Plaintiff Fuwei Films
(Shandong) Co., Ltd.
Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Franklin
E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (David F. D’Alessandris); and Office of the Chief Counsel for
Import Administration, U.S. Department of Commerce (Whitney Rolig), of counsel, for
Defendant United States for Defendant United States.
Wilmer, Cutler, Pickering, Hale & Dorr LLP (Patrick J. McLain, David Moses
Horn, and Ronald I. Meltzer) for Defendant-Intervenors’ DuPont Teijin Films, Mitsubishi
Polyester Film, Inc., and SKC, Inc.
Gordon, Judge: Before the court is a motion by Plaintiff, Fuwei Films (Shandong)
Co., Ltd. (“Fuwei”), to amend its complaint to add an additional claim challenging
Commerce’s zeroing methodology within administrative reviews, a request that Fuwei
explains is motivated by two recent Federal Circuit decisions addressing Commerce’s
Consol. Court No. 11-00061 Page 2
zeroing methodology, Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir.
2011) and JTEKT Corp. v. United States, 642 F.3d 1378, 1383-84 (Fed. Cir. 2011).
USCIT Rule 15(a) provides that “a party may amend the party’s own pleading
only by leave of court or by written consent of the adverse party; and leave shall be
freely given when justice so requires.” USCIT R. 15(a). It is within the court’s discretion
to determine whether to grant leave to amend. Former Employees of Quality
Fabricating, Inc. v. United States, 28 CIT 1061, 1065, 353 F. Supp. 2d 1284, 1288-89
(2004). “In the absence of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, . . . the leave sought should, as the
rules require, be ‘freely given.’” Foman v. Davis, 371 U.S. 178, 182 (1962).
The issue presented by Fuwei’s motion, however, is less about the
appropriateness of an amended complaint, and more about the issue of exhaustion of
administrative remedies. Fuwei acknowledges that it did not challenge Commerce’s
zeroing methodology during the administrative proceeding. When reviewing
Commerce's antidumping determinations, the U.S. Court of International Trade requires
litigants to exhaust administrative remedies “where appropriate.” 28 U.S.C. § 2637(d)
(2006). “This form of non-jurisdictional exhaustion is generally appropriate in the
antidumping context because it allows the agency to apply its expertise, rectify
administrative mistakes, and compile a record adequate for judicial review-advancing
the twin purposes of protecting administrative agency authority and promoting judicial
efficiency.” Carpenter Tech. Corp. v. United States, 30 CIT 1373, 1374-75, 452 F.
Supp. 2d 1344, 1346 (2006) (citing Woodford v. Ngo, 548 U.S. 81, 88-90 (2006)). The
Consol. Court No. 11-00061 Page 3
court “generally takes a ‘strict view’ of the requirement that parties exhaust their
administrative remedies before the Department of Commerce in trade cases.” Corus
Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007).
An important corollary requirement to exhaustion of administrative remedies is
Commerce’s own regulatory requirement that parties raise all issues within their
administrative case briefs. 19 C.F.R. § 351.309(c)(2) (2010) (“The case brief must
present all arguments that continue in the submitter’s view to be relevant to the final
determination.”); Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1383
(Fed. Cir. 2008) (parties are “procedurally required to raise the{ir} issue before
Commerce at the time Commerce {is} addressing the issue”); see also 19 U.S.C. §
1677f(i)(3)(A) (2006) (“the administering authority shall include . . . an explanation of the
basis for its determination that addresses relevant arguments, made by interested
parties”). This requirement works in tandem with the exhaustion requirement and
promotes the same twin purposes of protecting administrative agency authority and
promoting judicial efficiency.
As noted, Plaintiff concedes that it did not raise the zeroing issue before
Commerce. Plaintiff nevertheless argues that at least one of two exceptions to the
exhaustion requirement applies. Plaintiff posits that the zeroing issue involves a “pure
question of law.” That exception, however, only might apply for a clear statutory
mandate that does not implicate Commerce’s interpretation of the statute under the
second step of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-45 (1984). See, e.g., Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024,
Consol. Court No. 11-00061 Page 4
1032 (Fed. Cir. 2007) (applying pure question of law exception to Chevron step 1
issue). Even when the statute is clear, however, it is always preferable to have the
agency’s interpretation of the statute it is entrusted to administer set forth on the
administrative record. See 2 Richard J. Pierce, Jr., ADMINISTRATIVE LAW TREATISE § 14.3
(5th ed. 2010) (describing the primary jurisdiction doctrine and its relationship to
Chevron); see also Agro Dutch, 508 F.3d at 1029 n.4 (noting that Commerce had
opportunity to, and did, put forth its interpretation on administrative record in two
instances). In this case the statute does not speak to the precise question of zeroing,
but instead requires some interpretation to fill this statutory gap. The court cannot on its
own resolve the issue. It is a Chevron step 2 issue; it requires the input of Commerce.
To address the problem, the court would first have to remand the issue to Commerce,
an inefficiency occasioned solely by Plaintiff’s inaction. The pure question of law
exception, therefore, cannot apply in this instance because its application would
undermine the very purposes the exhaustion requirement is designed to promote.
Fuwei also argues that the futility exception should apply. Fuwei, though, ignores
Commerce’s regulatory requirement that parties raise all issues within their
administrative case briefs. 19 C.F.R. § 351.309(c)(2). That provision carries the force
of law and the court cannot simply ignore it. “The mere fact that an adverse decision
may have been likely does not excuse a party from satisfying statutory or regulatory
requirements to exhaust administrative remedies.” Tianjin Magnesium Int’l Co. v.
United States, 34 CIT ____, ____, 722 F. Supp. 2d 1322, 1330 (2010) (citing Commc’ns
Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 433 (D.C. Cir. 1994)). Fuwei could
Consol. Court No. 11-00061 Page 5
have raised its arguments about potential unreasonable inconsistencies in Commerce’s
zeroing practice in its administrative case brief. There was nothing preventing Fuwei
from asserting its rights at the administrative level.
Consider, for example, the plaintiff in Dongbu. Commerce introduced its zeroing
methodology change after the time for the submission for case briefs had passed.
Plaintiff nevertheless submitted a letter challenging Commerce’s zeroing practice as an
unreasonable interpretation of the dumping statute. Had Fuwei asserted its rights with
equal vigor (as the regulations, and statute require), it would have created a record
suitable for judicial review. Some form of perceived administrative obstinacy is no
excuse. In fact, any intransigence on the agency’s part would only aid the litigant in
demonstrating to the court the unreasonableness of the agency’s position.
Unfortunately, Fuwei’s failure to challenge zeroing before Commerce has left the
court without a record to review on this issue. The court is therefore not inclined to
excuse the requirement that Fuwei have exhausted its administrative remedies in this
instance.
Accordingly, it is hereby
ORDERED that Plaintiff’s motion for leave to amend its complaint is denied.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: September 8, 2011
New York, New York