US Opposes Rehearing of Plywood Circumvention Case, Denies Claim It Hid Evidence
Responding to a plywood importer’s motion for rehearing, the U.S. Dec. 12 denied that it had suppressed evidence in “flagrant violation” of a remand order, saying the importer, InterGlobal Forest, had no basis for seeking a rehearing of its case (American Pacific Plywood v. United States, CIT Consol. # 20-03914).
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In a July ruling, the Court of International Trade sustained a CBP evasion finding regarding importers American Pacific Plywood, InterGlobal and U.S. Global Forest (see 2507100044). In his order, CIT Judge M. Miller Baker considered each of InterGlobal’s allegations claim-by-claim and rejected each.
InterGlobal responded with a motion for rehearing in August, claiming CIT’s ruling committed at least eight errors (see 2508080061). It also asked for an adverse inference against the government, saying the U.S. violated an earlier remand order by not including certain pieces of evidence from other proceedings in its Remand Appendix. It claimed the government attempted to hide the evidence from it.
In denying that claim in its Dec. 12 brief, the U.S. said the information was already on the case’s record, so “there was no effort to withhold information from [InterGlobal].” InterGlobal itself could have added the evidence to the record, it said.
The U.S. also said: “That the information was not part of the remand appendix resulted simply from the fact that it was not cited by either party; certainly not a basis for an adverse inference, or reconsideration.”
The U.S. added that InterGlobal had no basis to seek a rehearing and that the importer was just seeking to re-argue the case. InterGlobal couldn’t provide any new evidence, any interceding change in law or any “clear error” in CIT’s opinion to justify reconsideration, it said.
For example, among its eight allegations of error, InterGlobal challenged the court’s decision to strike the importer’s “‘reply brief’” after CIT denied a motion for oral argument, the government said. InterGlobal claimed it was entitled to a reply brief under Rule 7(d), but that wasn’t the governing court rule, the U.S. said; the proceeding was undertaken under Rule 56.2 as a review of an administrative decision authorized by the Enforce and Protect Act. The rule permits only a motion for judgment, a response brief by the opposition, and a reply brief, it said.
InterGlobal also claimed CIT should have found the government was judicially estopped from reaching its final circumvention decision because, in a Jan. 16 stipulated judgment between the U.S. and importer Richmond International Forest Products -- which purchased from InterGlobal’s exporter -- the government agreed that Richmond hadn’t circumvented the same antidumping duty and countervailing duty orders.
But CIT properly conducted a judicial estoppel analysis, the U.S. said. The trade court found that the government’s positions from Richmond’s case to InterGlobal’s weren’t inconsistent because each concerned only that importer’s entries, it said.
Further, InterGlobal’s argument that the court had also been required to consider the res judicata and collateral estoppel doctrines was waived, as the importer hadn’t raised them at any point prior to the court's holding, the government said.
The importer’s appeal to stare decisis, meanwhile, was flawed because the doctrine only preferences precedential court opinions, it said. The Jan. 16 stipulated judgment between the U.S. and Richmond was neither precedential nor a court opinion, it said.
The government claimed that InterGlobal also waived its argument, made in its rehearing motion, that its merchandise wasn’t covered by the relevant antidumping duty and countervailing duty orders’ scope because its products came from Cambodia, not China. InterGlobal never made that claim to CBP, it said.