United States Court of Appeals
for the Federal Circuit
__________________________
HOME PRODUCTS INTERNATIONAL, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
and
SINCE HARDWARE (GOUANGZHOU) CO., LTD.,
Defendant.
__________________________
2010-1184
__________________________
Appeal from the United States Court of International
Trade in case no. 08-CV-0094, Judge Leo M. Gordon.
___________________________
Decided: February 7, 2011
___________________________
FREDERICK L. IKENSON, Blank Rome LLP, of Washing-
ton, DC, argued for plaintiff-appellant.
PATRICIA M. MCCARTHY, Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With her on the brief were TONY
HOME PRODUCTS v. US 2
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and CARRIE DUNSMORE, Attorney.
__________________________
Before BRYSON, DYK, and MOORE, Circuit Judges.
DYK, Circuit Judge.
This case concerns the obligation of a court to remand
a case to an administrative agency when new evidence
indicates that the agency’s proceedings were tainted by
material fraud. We hold that the Court of International
Trade (“Trade Court”) abused its discretion in declining to
remand this case to the Department of Commerce (“Com-
merce”), and accordingly we reverse and remand with
instructions that the case be remanded to Commerce for
further proceedings consistent with this opinion.
BACKGROUND
I
This case concerns an antidumping duty order issued
in 2004 covering floor-standing, metal-top ironing tables
and certain parts thereof from the People’s Republic of
China. Commerce determined that Since Hardware
(Gouangzhou) Co., Ltd. (“Since Hardware”) and other
Chinese exporters were selling ironing tables in the
United States at less than fair value, and the Interna-
tional Trade Commission (“ITC”) found material injury. 1
Thereafter, in the first and second administrative reviews
1 See Notice of Amended Final Determination of
Sales at Less than Fair Value and Antidumping Duty
Order: Floor-Standing, Metal-Top Ironing Tables and
Certain Parts Thereof from the People’s Republic of China,
69 Fed. Reg. 47,868 (Dep’t of Commerce Aug. 6, 2004)
(original antidumping duty order).
3 HOME PRODUCTS v. US
of that antidumping order, Commerce calculated dumping
margins for Since Hardware of 0.45 percent 2 and 0.34
percent 3 respectively. Because the agency considers
dumping margins of less than 0.5 percent to be de mini-
mis, Commerce accordingly did not impose any antidump-
ing duties on Since Hardware for these review periods.
In March 2008, plaintiff-appellant Home Products In-
ternational, Inc. (“Home Products”) initiated an action in
the Trade Court challenging the results of Commerce’s
second administrative review on the grounds that Com-
merce calculated an improperly low dumping margin.
Since Hardware, the respondent in the Commerce pro-
ceeding, intervened in support of the government. The
sole issue raised in Home Products’ complaint was
whether Commerce had erred in using a surrogate manu-
facturer’s outdated financial statements to value Since
Hardware’s factory overhead, administrative expenses,
and profit. The Trade Court ultimately rejected Home
Products’ contentions regarding this issue—a ruling
which Home Products does not contest and that is not
relevant to the present appeal.
2 See Floor-Standing, Metal-Top Ironing Tables and
Certain Parts Thereof from the People’s Republic of China:
Final Results and Final Rescission, in Part, of Antidump-
ing Duty Administrative Review, 72 Fed. Reg. 13,239,
13,241 (Dep’t of Commerce Mar. 21, 2007), as amended,
72 Fed. Reg. 19,689, 19,690 (Dep’t of Commerce Apr. 19,
2007) (first administrative review, covering imports from
February 3, 2004, through July 31, 2005).
3 See Floor-Standing, Metal-Top Ironing Tables and
Certain Parts Thereof from the People’s Republic of China:
Final Results of Antidumping Duty Administrative Re-
view, 73 Fed. Reg. 14,437, 14,438 (Dep’t of Commerce
Mar. 18, 2008) (second administrative review, covering
imports from August 1, 2005, through July 31, 2006).
HOME PRODUCTS v. US 4
While Home Products’ challenge to the second admin-
istrative review was pending in the Trade Court, Com-
merce was conducting its third administrative review of
the same antidumping order. See Floor-Standing, Metal-
Top Ironing Tables and Certain Parts Thereof from the
People’s Republic of China: Final Results of Antidumping
Duty Administrative Review, 74 Fed. Reg. 11,085 (Dep’t of
Commerce Mar. 16, 2009) [hereinafter AR3 Final Results]
(covering imports from August 1, 2006, through July 31,
2007). During that proceeding, new evidence was brought
to light that indicated Since Hardware had submitted
falsified documents to Commerce during the third admin-
istrative review. Commerce concluded that the docu-
ments were unreliable and inaccurate. Commerce’s
findings regarding this alleged conduct were detailed in
two memoranda that the agency adopted in its final
results. See AR3 Final Results, at 11086 (adopting Issues
and Decision Memorandum for the Final Results in the
Administrative Review of Floor-Standing, Metal-Top
Ironing Tables and Certain Parts Thereof from the Peo-
ple’s Republic of China, available at
http://ia.ita.doc.gov/frn/summary/PRC/E9-5627-1.pdf, J.A.
1007–18 [hereinafter I & D Memo]; Since Hardware
(Guangzhou) Co., Ltd.’s Claim Regarding Market Econ-
omy Purchases, and Use of Adverse Facts Available, J.A.
1020–38 [hereinafter AFA Memo]). Understanding the
nature of the alleged falsifications requires a brief over-
view of certain aspects of antidumping law.
Dumping occurs when a foreign firm sells a product in
the United States at a price lower than the product’s
normal value (“NV”); the amount by which NV exceeds
the U.S. price (the “export price”) is the “dumping mar-
gin.” See 19 U.S.C. § 1673. For exporters based in mar-
ket economy (“ME”) countries, NV is generally the price at
which the firm sells the product in its home market. See
5 HOME PRODUCTS v. US
19 U.S.C. § 1677b(a)(1)(B)(i). However, Since Hardware
is located in China, a non-market-economy (“NME”)
country. Where, as here, the exporter is located in an
NME country, the default rule is that NV is calculated
based on a factors-of-production analysis whereby each
input is valued based on data from a surrogate ME coun-
try. See 19 U.S.C. § 1677b(a)(1)(B)(ii), (c). However, if an
NME exporter purchases a portion of a given input from
an ME supplier and pays in ME currency, Commerce will
generally value that portion of the input according to the
actual price paid to the ME supplier (even if the supplier
is located in an ME country other than the chosen surro-
gate country). See 19 C.F.R. § 351.408(c)(1). Further-
more, if an NME exporter purchases at least thirty-three
percent of a given input from ME suppliers, Commerce
will use the weighted-average price of those ME pur-
chases (rather than a surrogate value) to value the re-
mainder of the input purchased from NME suppliers. See
Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback;
and Request for Comments, 71 Fed. Reg. 61,716, 61,717–
18 (Dep’t of Commerce Oct. 19, 2006). In such situations,
if the weighted-average ME purchase price is lower than
the surrogate value that would otherwise be assigned to
an input, the result would be a lower NV and a corre-
spondingly smaller dumping margin.
During the third administrative review, Home Prod-
ucts contended that Since Hardware had submitted
falsified certificates of origin to Commerce that inaccu-
rately reported that it had purchased portions of certain
steel inputs from ME suppliers. These certificates of
origin were material because they made it appear that
Since Hardware had purchased more than the key thirty-
three percent threshold of the inputs in question from ME
suppliers, thereby qualifying the entirety of those inputs
HOME PRODUCTS v. US 6
to be valued based on the weighted-average price of Since
Hardware’s (purported) ME purchases. See AFA Memo,
at 2; see also Floor-Standing, Metal-Top Ironing Tables
and Certain Parts Thereof from the People’s Republic of
China: Preliminary Results of Antidumping Duty Admin-
istrative Review, 73 Fed. Reg. 52,277, 52,280 (Dep’t of
Commerce Sept. 9, 2008) [hereinafter AR3 Preliminary
Results]. Furthermore, this was significant because the
steel inputs in question were “the primary inputs” for
producing floor-standing, metal-top ironing tables. AFA
Memo, at 2. Presumably, Since Hardware’s purported
ME purchase prices were lower than the alternative
surrogate values. This likely allowed Since Hardware to
obtain a decreased dumping margin. See I & D Memo,
J.A. 1015.
As described by Commerce in the third administrative
review, the evidence of misrepresentations by Since
Hardware in the third administrative review is quite
substantial. See I & D Memo; AFA Memo.
First, the certificates of origin submitted by Since
Hardware contained typographical errors that were
inconsistent with genuine exemplar certificates of origin
supplied by the certifying agency of the purported country
of origin. For instance, several words were misspelled,
the business identification number of the certifying
agency was misprinted, and several phrases were altered
in wording. AFA Memo, at 3–4, 11.
Second, the certificates submitted by Since Hardware
each bore a six-digit alpha-numeric certificate number
(e.g., “B6B326”), whereas the official forms employed a
basic sequential numbering system (e.g., six numbers,
with a single letter suffix). Id. at 4, 11.
Third, the date stamp appearing on Since Hardware’s
certificates differed from the official stamp used by the
7 HOME PRODUCTS v. US
certifying agency in that it lacked an official logo and
employed a different date format (e.g., the official stamp
used a “28 NOV 2006” format, whereas the stamp on
Since Hardware’s certificates used a “2005. 11. 25” for-
mat). Id.
Fourth, the signature on Since Hardware’s certificates
of origin was noticeably different from the actual signa-
ture of the corresponding certifying agency official, whose
signature was unique. Id. at 4–5, 11. Moreover, one of
the certificates Since Hardware submitted during the first
administrative review was purportedly signed by the
same official long before she had even begun her employ-
ment with the certifying agency. Id. at 5, 11.
Fifth, the amounts of steel reported on Since Hard-
ware’s certificates of origin were inconsistent with rele-
vant market data. In particular, Commerce noted that
“[n]either the data on steel exports from [the purported
country of origin], nor the data on steel imports by [the
purported destination country] support the levels of
purchases claimed by Since Hardware.” Id. at 12. In fact,
“Since Hardware[’s] claimed purchases alone exceed[ed]
the total inputs of [the type of steel at issue] shipped to all
potential customers in these countries.” Id.
In light of this evidence, Since Hardware did not ar-
gue that the challenged certificates of origin were authen-
tic, but rather attempted to shift blame for the apparent
forgeries by arguing that that the certificates of origin
were provided to it by its unaffiliated suppliers. Id. at 6–
7. However, Commerce found this contention to be im-
plausible, as the same falsifications appeared in the
certificates purportedly submitted by multiple independ-
ent suppliers. Id. at 11. “In the absence of any evidence
to suggest [its suppliers] collude[d] to provide unreliable
certificates,” Commerce reasoned, “the most plausible
HOME PRODUCTS v. US 8
explanation for these same errors appearing in [multiple]
suppliers’ documents is that Since Hardware is the source
of these inaccuracies.” Id. at 12. Moreover, “[a]s opposed
to its suppliers, Since Hardware ha[d] a strong interest in
providing data that would lead the Department to rely
upon purported market economy purchases,” because this
“allow[ed] Since Hardware to control the valuation of . . .
key inputs, rather than rely[] on the Department’s factors
of production” analysis. Id.
Commerce ultimately concluded its third administra-
tive review by finding that Since Hardware had “provided
unreliable and incomplete documentation in support of its
claimed purchases of market economy inputs,” and that
“these unreliable submissions call[ed] into question the
reliability of the questionnaire responses submitted by
Since Hardware in [the third administrative review].”
I & D Memo, J.A. 1012. Because Since Hardware had
“failed to cooperate to the best of its ability with respect to
its obligation to provide accurate information concerning
its market economy purchases,” Commerce applied ad-
verse facts available and significantly increased Since
Hardware’s dumping margin. 4
4 Commerce apparently applied adverse facts avail-
able to both (1) the input valuations for Since Hardware’s
factors-of-production analysis, given the falsifications
concerning materials purportedly purchased from ME
suppliers, and (2) Since Hardware’s claim of eligibility for
separate rate status. Id. Finding that Since Hardware
did not qualify for separate rate status after applying
adverse facts available, Commerce assigned Since Hard-
ware China’s country-wide dumping margin of 157.68
percent. AFA Memo, at 15–16; see AR3 Final Results, at
11086. This made it unnecessary to recalculate input
values for a separate rate factors-of-production analysis.
Since Hardware appealed this decision.
9 HOME PRODUCTS v. US
Finally, of particular importance to the present ap-
peal, Commerce further appeared to agree in the third
administrative review that certificates of origin provided
by Since Hardware “in the course of the first and second
administrative reviews also bore the same set of [discrep-
ancies]” as the certificates it had submitted during the
third administrative review. AFA Memo, at 5; see also id.
at 6 (“not[ing] that the same typographical errors noted in
the instant review also appear in the certificates of origin
submitted by Since Hardware in the first and second
administrative reviews”); id. at 11 (noting that “one of the
certificates on the record in the first administrative
review was purportedly signed by a specific . . . official
long before she began her employment with the [certifying
agency]”).
While the present appeal from the second admin-
istrative review was pending in this court, the Trade
Court rendered a decision as to the third administrative
review. See Since Hardware (Guangzhou) Co., Ltd. v.
United States, No. 09-00123, slip op. 10-108 (Ct. Int’l
Trade Sept. 27, 2010). The Trade Court affirmed Com-
merce’s application of adverse facts available to the input
valuations, id. at 18-22, but found it was improper to
apply adverse facts available to Since Hardware’s re-
sponses regarding its eligibility for separate rate status
without Commerce first making a specific finding that
those responses were inaccurate, id. at 15-17. The Trade
Court thus remanded to Commerce with instructions to
reexamine whether Since Hardware had produced suffi-
ciently reliable evidence to qualify for separate rate
status, and, if so, to calculate Since Hardware’s separate
rate dumping margin using adverse facts available as to
its factors of production. Id. at 22-23. At this point it is
difficult to predict the likely impact of the falsifications on
the dumping margin in the third administrative review.
HOME PRODUCTS v. US 10
II
In May 2009, in light of the results of the third admin-
istrative review—and in particular Commerce’s apparent
agreement that the same discrepancies appeared on
certificates Since Hardware submitted during the second
administrative review—Home Products moved the Trade
Court to amend its complaint in its challenge to the
second administrative review. 5 It requested that the
court remand the case to Commerce for reconsideration in
light of the newly discovered evidence of falsification in
the second administrative review. The government
opposed, arguing that “Home Products’ contention that
‘newly discovered evidence’ exists is not relevant” because
“judicial review of antidumping duty administrative
reviews is limited to ‘review upon the basis of the record
made before the agency which issued the decision.’” Def.’s
Resp. to Pl.’s Mot. to Remand, J.A. 1096 (citation omit-
ted). Considering only the second administrative review
record, the government contended, Home Products had
failed to show that Commerce’s final results were unsup-
ported by substantial evidence. Id. at 1095–96. The
5 In its proposed amended complaint, Home Prod-
ucts sought to add a new count to assert the following:
Evidence discovered long after the publica-
tion of Commerce’s final results indicates that
material false documents were willfully submit-
ted to Commerce by Since Hardware during the
administrative review. Commerce’s final results
would likely have been materially different had
Commerce been aware, before issuing such de-
termination, that Since Hardware had submitted
material false information to it. The case must
be remanded so that Commerce may reconsider
its determination in light of the newly discovered
evidence of material false information willfully
submitted by Since Hardware.
J.A. 1004–05.
11 HOME PRODUCTS v. US
Trade Court denied Home Products’ motions, see Memo-
randum and Order, Home Prods. Int’l, Inc. v. United
States, No. 08-00094 (Ct. Int’l Trade Dec. 17, 2009) [here-
inafter Trade Court Order], and thereafter issued a final
judgment in the government’s favor regarding Home
Products’ original action, see Home Prods. Int’l, Inc. v.
United States, 675 F. Supp. 2d 1192, 1200 (Ct. Int’l Trade
2009).
In denying the motions, the Trade Court agreed with
the government and “decline[d] Home Products’ invitation
to go beyond the administrative record under review.”
Trade Court Order, at 10. While its opinion is not entirely
clear, it appears that the court was operating under the
theory that, because the remand request was not made by
Commerce itself, the court was limited to considering
evidence found in the record of the second administrative
review—the proceeding from which Home Products ap-
pealed. Id. at 10–11. This necessarily excluded from
consideration Commerce’s subsequent findings made
during the third administrative review and the docu-
ments contained in the record of the third administrative
review. (The allegedly falsified documents in the second
administrative review were, of course, in the second
administrative review record.)
The Trade Court further noted that, even if extra-
record evidence were to be considered, it disagreed with
Home Products’ characterization of the third administra-
tive review. First, the court rejected Home Products’
contention that Commerce had found “fraud” in the third
administrative review, stating that, “contrary to Home
Products’ contentions, Commerce did not conclude that
Since Hardware’s submissions provide ‘evidence of decep-
tion and document falsification.’” Id. at 10 (citation
omitted). The court apparently based this conclusion on
the fact that Commerce had used words such as “unreli-
HOME PRODUCTS v. US 12
able” and “inaccurate” to describe Since Hardware’s
certificates of origin, rather than words such as “false,”
“forged,” or “sham.” Id. at 9. Second, the Trade Court
concluded that Commerce’s decision in the third review
“did not make any findings about the first and second
administrative reviews,” and that “Home Products has
failed to demonstrate that any false information is even
contained in the record of [the second] administrative
review.” Id. at 9–10.
Home Products appealed the Trade Court’s decision to
this court. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(5).
DISCUSSION
The question presented here is whether the Trade
Court is obligated to remand a decision to Commerce for
reconsideration when new evidence comes to light that
the agency proceedings under review were tainted by
material fraud.
In Tokyo Kikai Seisakusho, Ltd. v. United States, 529
F.3d 1352, 1360 (Fed. Cir. 2008), we held that Commerce
itself has the authority to reopen a proceeding if it later
discovers evidence of fraud in the original proceeding.
Section 751(b) of the Tariff Act of 1930, codified at 19
U.S.C. § 1675(b), provides for what is known as a
“changed circumstances” review. Under that section,
Commerce has the statutory authority to reconsider its
decisions whenever the agency “receives information . . .
which shows changed circumstances sufficient to warrant
a review.” 19 U.S.C. § 1675(b)(1); see also 19 C.F.R. §
351.216. In Tokyo Kikai, 529 F.3d at 1357, Commerce
itself initiated a changed circumstances review in order to
reconsider the results of three yearly administrative
reviews in light of new evidence brought to light during a
separate district court proceeding that indicated the
13 HOME PRODUCTS v. US
respondents’ representatives had committed perjury
during the agency proceedings. Upon review, Commerce
applied adverse facts available and increased the respon-
dents’ dumping rate from zero percent to 59.67 percent.
Id. at 1357–58. The respondents appealed, contesting
Commerce’s authority to reopen the proceeding and
arguing that new evidence of fraud did not fall into the
category of “changed circumstances” for which Commerce
was authorized to reopen under § 1675(b). Id. at 1359–60.
The Trade Court sustained Commerce’s authority to
reopen the proceeding, and we affirmed. Id. We agreed
that new evidence of fraud did not fit neatly into the
category of “changed circumstances,” because in such
cases “the circumstances that led to the determination
have ‘changed’ only because the true circumstances,
previously concealed by fraud, have come to light.” Id. at
1360. Nonetheless, we held that “administrative agencies
possess inherent authority to reconsider their decisions,
subject to certain limitations, regardless of whether they
possess explicit statutory authority to do so.” Id. Fur-
thermore, we noted that “[a]n agency’s power to recon-
sider is even more fundamental when, as here, it is
exercised to protect the integrity of its own proceedings
from fraud.” Id. at 1361. 6
Thus, Tokyo Kikai established that Commerce has in-
herent authority to reopen a case to consider new evi-
dence that its proceedings were tainted by fraud.
6 See also Alberta Gas Chems., Ltd. v. Celanese
Corp., 650 F.2d 9, 13 (2d Cir. 1981) (“It is hard to imagine
a clearer case for exercising this inherent power [to recon-
sider] than when a fraud has been perpetrated on the
tribunal in its initial proceeding.”); Elkem Metals Co. v.
United States, 193 F. Supp. 2d 1314, 1321 (Ct. Int’l Trade
2002) (“A finding that the ITC has the authority to recon-
sider a final determination is particularly appropriate
where after-discovered fraud is alleged.”).
HOME PRODUCTS v. US 14
Strangely, the government argues that Commerce has no
authority to consider allegations of fraud. 7 While the
statute does not in terms confer such authority, it is
necessarily inherent in the authority of any administra-
tive agency, as our decision in Tokyo Kikai makes clear.
Contrary to Commerce’s argument, the authority to
reopen is not limited to cases in which a determination of
fraud has been made in a separate proceeding.
We see no reason why similar principles should not
govern when fraud is discovered while the agency pro-
ceeding is on appeal. To be sure, Commerce may not
reopen a case while it is on appeal until the case has been
remanded by the Trade Court. This has been the consis-
tent practice of Commerce and the Trade Court. 8 More-
over, it is clear that, by analogy to Federal Rule of Civil
Procedure 60(b), Commerce lacks jurisdiction to grant a
motion to reopen its proceedings while an appeal is pend-
ing. 9 However, when a case is on appeal, our decisions
7 The government argues that “[n]othing in the an-
tidumping statute instructs Commerce to conduct admin-
istrative reviews to uncover fraud,” and that “Commerce
is neither required, nor best situated, to investigate and
develop methods to combat instances of fraud in connec-
tion with importation of merchandise subject to anti-
dumping and countervailing duties.” Appellee’s Br. 13.
8 See, e.g., GPX Int’l Tire Corp. v. United States, 715
F. Supp. 2d 1337, 1350 (Ct. Int’l Trade 2010) (granting
Commerce’s request for a voluntary remand so that
Commerce could reopen the proceeding); Home Prods.
Int’l, Inc. v. United States, 556 F. Supp. 2d 1338, 1340 (Ct.
Int’l Trade 2008) (same); Dorbest Ltd. v. United States,
547 F. Supp. 2d 1321, 1337–38 (Ct. Int’l Trade 2008)
(same); Mittal Steel Point Lisas Ltd. v. United States, 491
F. Supp. 2d 1222, 1232–33 (Ct. Int’l Trade 2007) (same);
Goldlink Indus. Co. v. United States, 431 F. Supp. 2d
1323, 1335–36 (Ct. Int’l Trade 2006) (same).
9 Rule 60(b) allows a federal district court to reopen
a final judgment to consider, inter alia, “newly discovered
15 HOME PRODUCTS v. US
and the decisions of other courts have recognized the
appropriateness of a remand to an administrative agency
when new and material evidence is presented to the
reviewing court and the agency requests a remand for
further consideration. 10
evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial,” and
evidence of “fraud . . . , misrepresentation, or misconduct
by an opposing party.” Fed. R. Civ. P. 60(b)(2)–(3). Rule
60(a) allows a court to correct clerical mistakes in a
judgment, order, or other part of the record. Fed. R. Civ.
P. 60(a). After an appeal is taken, Rule 60(a) explicitly
requires leave of the appellate court to correct clerical
mistakes, but Rule 60(b) is silent on the question.
Though the courts of appeal have differed on the proce-
dures to be followed regarding Rule 60(b), there is broad
agreement that a district court at least lacks the author-
ity to grant a motion to reopen while an appeal is pend-
ing. Compare, e.g., Weiss v. Hunna, 312 F.2d 711, 713 (2d
Cir. 1963) (holding that, “once plaintiff had filed a notice
of appeal, the district court was divested of jurisdiction to
grant or deny relief under . . . Rule 60(b) except with [the
appellate court’s] permission.”) (emphasis added), with
Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 41–42 (1st
Cir. 1979) (holding that a district court may consider and
deny Rule 60(b) motions while an appeal is pending, but
may not grant them; if a district court is inclined to grant
a 60(b) motion, it may issue an informal memorandum
stating so, and the interested party may request a re-
mand from the appellate court); see also 12 James W.
Moore, Federal Practice § 60.67[1] (3d ed. 2010); 11
Charles Alan Wright et al., Federal Practice and Proce-
dure § 2873 (1995).
10 See SKF USA Inc. v. United States, 254 F.3d 1022,
1028 (Fed. Cir. 2001) (holding that Commerce may re-
quest a remand when it “believes that its original decision
was incorrect on the merits and it wishes to change the
result”); Borlem S.A.—Empreedimentos Industriais v.
United States, 913 F.2d 933, 937, 941–42 (Fed. Cir. 1990)
(affirming Trade Court’s grant of the ITC’s motion to
HOME PRODUCTS v. US 16
While in this case it was Home Products—rather than
Commerce—that requested a remand, we see no reason
why parties other than the administrative agency cannot
also request reopening or a remand for the consideration
of new and material evidence. It is well established that,
when an administrative agency denies a party’s petition
which seeks to “reopen[ a case] on the basis of new evi-
dence or changed circumstances,” that decision is review-
able on appeal, and “abuse of discretion is the standard.”
Interstate Commerce Comm’n v. Bhd. of Locomotive
Eng’rs, 482 U.S. 270, 284 (1987). 11 So too, a decision of
the Trade Court denying a motion by an interested party
to remand is subject to judicial review under the abuse of
discretion standard. Diamond Sawblades Mfrs. Coal. v.
United States, 612 F.3d 1348, 1355–56 (Fed. Cir. 2010);
Altx, Inc. v. United States, 370 F.3d 1108, 1117 (Fed. Cir.
remand to the ITC for reconsideration of its determina-
tion of material injury in light of Commerce’s revised
calculated dumping margin, and noting that “Congress’
desire for speedy determinations on dumping matters
should not be interpreted as authorizing proceedings that
are based on inaccurate data”); see also Citizens Against
Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d
412, 416 (6th Cir. 2004) (“[C]ourts typically grant an
agency’s motion to remand a case if there has been an
intervening change in the law or new evidence.”); Ethyl
Corp v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993) (“We
commonly grant [agencies’ motions to remand to consider
new evidence], preferring to allow agencies to cure their
own mistakes rather than wasting the courts’ and the
parties’ resources reviewing a record that both sides
acknowledge to be incorrect or incomplete.”).
11 See also 19 U.S.C. § 1516a(a)(1)(B), (b)(1)(A) (pro-
viding that a determination not to conduct a changed
circumstances review is reviewable for abuse of discre-
tion); Avesta AB v. United States, 914 F.2d 233, 235 (Fed.
Cir. 1990) (applying §1516a in reviewing an ITC decision
not to institute a changed circumstances review).
17 HOME PRODUCTS v. US
2004). The Trade Court has considerable discretion as to
whether to order a remand in the particular circum-
stances of any individual case. That discretion, however,
is not unlimited. We hold that, where a party brings to
light clear and convincing new evidence sufficient to make
a prima facie case that the agency proceedings under
review were tainted by material fraud, the Trade Court
abuses its discretion when it declines to order a remand to
require the agency to reconsider its decision in light of the
new evidence. The Trade Court’s reasons for refusing to
remand here do not withstand analysis.
First, the Trade Court here declined to remand be-
cause Home Products’ allegations of fraud rested on
evidence “beyond the administrative record under re-
view,” apparently operating under the theory that its
review was confined to the administrative record when
Commerce itself had not initiated the remand request.
Trade Court Order, at 10. It is true that, generally, for a
court reviewing an agency decision, “the focal point for
judicial review should be the administrative record al-
ready in existence, not some new record made initially in
the reviewing court.” Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 743 (1985) (quoting Camp v. Pitts, 411 U.S.
138, 142 (1973)); see also Walls v. United States, 582 F.3d
1358, 1367 (Fed. Cir. 2009); Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009).
However, the so-called “record rule” is not without excep-
tions. 12 As we held in Borlem, 913 F.2d at 939, “a review-
12 See, e.g., Fla. Power & Light Co., 470 U.S. at 744
(“[I]f the agency has not considered all relevant factors, or
if the reviewing court simply cannot evaluate the chal-
lenged agency action on the basis of the record before it,
the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation.”); Olsen v. United States, 414 F.3d 144, 155
(1st Cir. 2005) (noting that remand to the agency for
HOME PRODUCTS v. US 18
ing court is not precluded under [the record rule] from
considering events which have occurred between the date
of an agency (or trial court) decision and the date of
decision on appeal.” Where there is new evidence indicat-
ing that the original record was tainted by fraud, reopen-
ing may be appropriate. For example, in Doria Mining &
Eng’g Corp. v. Morton, 608 F.2d 1255, 1257–59 (9th Cir.
1979)—a case quite similar to this one—the Ninth Circuit
held that extrinsic evidence could be considered when a
claimant alleged it had discovered new evidence showing
that the decision under review was obtained by fraud in
the administrative proceeding. In Doria, the claimant
sought district court review of a decision of the Interior
Board of Land Appeals. Id. at 1256. Thirteen months
after commencing the review action, the claimant moved
for leave to amend its complaint to add allegations that
new evidence brought to light in a collateral state pro-
ceeding indicated that the respondent had committed
fraud and perjury during the administrative proceeding.
Id. at 1257. The district court denied the motion to
amend on the grounds that the court was without juris-
diction to consider evidence not found in the administra-
tive record. Id. The Ninth Circuit reversed, stating:
It is true that the appropriate standard for review
of administrative proceedings is whether the ad-
ministrative findings are supported by substan-
tial evidence in the record as a whole. When,
however, the party seeking review alleges that it
has discovered new evidence showing that the de-
cision before the court for review was obtained by
a fraud on the administrative proceeding, we hold
clarification is proper in the event that the administrative
record is found inadequate to permit meaningful judicial
review); Richard J. Pierce, Jr., Administrative Law Trea-
tise § 11.6 (4th ed. 2009).
19 HOME PRODUCTS v. US
that the reviewing court may consider evidence
extrinsic to the record in determining whether
such allegations are meritorious. . . .
....
. . . Newly discovered evidence of fraud and per-
jury in an administrative proceeding will not be
found in the administrative record. If the review-
ing court, in the face of an allegation that such
evidence exists and that administrative remedies
have been exhausted, nevertheless confines itself
to consideration only of evidence in the record, the
party seeking review is left without any forum in
which to argue the allegedly fraudulent basis of
the administrative judgment.
Id. at 1257–59 (internal citations omitted). We find this
reasoning to be persuasive, and accordingly we join the
Ninth Circuit in recognizing an exception to the record
rule where new evidence of material fraud has been
brought to light which calls into question the integrity of
the agency’s proceedings. 13
We turn next to the Trade Court’s conclusion that
Commerce did not, in the third administrative review,
make a finding of fraud. Trade Court Order, at 9–10. The
13 See also United States v. Shotwell Mfg. Co., 355
U.S. 233, 240–45 (1957) (in light of allegation that new
evidence had been discovered showing fraud had been
committed on the district court, the Supreme Court
considered such evidence in deciding that vacation and
remand were required); Standard Oil Co. v. Montedison,
S.p.A., 540 F.2d 611, 617 (3d Cir. 1976) (“[I]n appropriate
circumstances the district court may, in [a section 146]
action, in the exercise of a sound discretion, permit an
issue of fraud which infected the Board’s determination to
be raised though it was not raised in the interference
proceeding.”).
HOME PRODUCTS v. US 20
government argues that evidence of inaccuracies is not
the same as evidence of fraud and that, in the absence of
fraud, no reopening of the proceeding is required. While
Commerce did not in the third review make an explicit
finding of “fraud,” it certainly appeared to suggest that
the evidence regarding Since Hardware’s falsified certifi-
cates of origin could support a finding of fraud. Focusing
on the multiple discrepancies between Since Hardware’s
certificates and the genuine exemplars, Commerce found
that Since Hardware’s certificates were “clearly not forms
used by the [certifying agency of the purported country of
origin].” AFA Memo, at 11. Because the same falsifica-
tions appeared in certificates purportedly originating from
multiple independent suppliers, Commerce further found
that “the most plausible explanation . . . is that Since
Hardware is the source of [the] inaccuracies.” Id. at 12.
In reviewing Commerce’s decision in the third adminis-
trative review, the Trade Court viewed “Commerce [as
having] found [that] the forms submitted by Since Hard-
ware . . . were fraudulent.” Since Hardware (Guangzhou)
Co., Ltd. v. United States, No. 09-00123, slip op. 10-108, at
10 (Ct. Int’l Trade Sept. 27, 2010); see also id. at 8, 20–21.
In any event, regardless of whether Commerce made an
express determination of fraud, it appears that Home
Products submitted clear and convincing evidence which
could support a finding that Since Hardware committed
fraud in the third administrative review. The final ques-
tion, therefore, is whether Home Products has presented
similar evidence that fraud also tainted the second ad-
ministrative review, which is the subject of this appeal.
We find that Home Products has met this burden.
While Commerce did not specifically find that falsification
had occurred in the second administrative review, we find
that the Trade Court’s decision was clearly erroneous in
finding that “Home Products has failed to demonstrate
21 HOME PRODUCTS v. US
that any false information is even contained in the record
of [the second] administrative review.” Trade Court
Order, at 10. Since Hardware’s certificates from the
second administrative review clearly contain the same
discrepancies Commerce observed in certificates from the
third administrative review, including the same typo-
graphical errors, different certificate numbering system,
different date stamp, and noticeably different signatures.
Compare J.A. 764 (genuine exemplar certificate), with
J.A. 766 (copy of certificate Since Hardware submitted in
the second administrative review).
Thus, contrary to the Trade Court, we find that Home
Products has presented clear and convincing new evi-
dence, sufficient to establish a prima facie case, that Since
Hardware was guilty of fraud in the second administra-
tive review. As discussed above, the fraud, if it occurred,
was also likely material because Since Hardware relied on
the certificates to show that it had purchased more than
the requisite 33 percent threshold of certain steel inputs
from ME suppliers, thereby qualifying those inputs for
valuations based on their ME purchase prices rather than
surrogate values. If the foregoing evidence had been
brought to light prior to the conclusion of the second
administrative review, it is quite possible that Commerce
would have applied adverse facts available to Since
Hardware’s input submissions and calculated a dumping
margin greater than the de minimis margin of 0.34 per-
cent.
Because Home Products has presented clear and con-
vincing new evidence sufficient to establish a prima facie
case that the agency proceedings under review were
tainted by material fraud, we find that the Trade Court
abused its discretion in refusing to order a remand to
allow Commerce to reconsider its decision in light of the
new evidence. We need not decide whether material
HOME PRODUCTS v. US 22
inaccuracies—in the absence of fraud—would require a
remand by the Trade Court or a reopening by Commerce.
CONCLUSION
Because we find that the Trade Court abused its dis-
cretion in denying Home Products’ motions to amend and
remand, the judgment is reversed, and we remand with
instructions that the Trade Court remand this case to
Commerce for further proceedings consistent with this
opinion. In ordering that the case be remanded to Com-
merce, we express no opinion as to whether Commerce
must exercise its authority to reopen; nor do we mandate
a finding of fraud. In deciding whether the proceeding
should be reopened, Commerce may appropriately con-
sider the interests in finality, the extent of the inaccura-
cies in the second administrative review, whether fraud
existed in the second administrative review, the strength
of the evidence of fraud, the level of materiality, and other
appropriate factors. While the agency’s counsel in this
appeal has opposed reopening, the views of Commerce
must be expressed by the agency itself, not by litigating
counsel. See Abbott Labs. v. United States, 573 F.3d 1327,
1332–33 (Fed. Cir. 2009) (“[W]e owe deference only to
those considered agency judgments as to the issue directly
involved in the litigation, not to the views of litigation
counsel.”); see also Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 213 (1988) (“Deference to what appears to be
nothing more than an agency’s convenient litigating
position would be entirely inappropriate.”). A remand is
necessary to secure the views of the agency itself. If
Commerce decides not to reopen, that decision may in
turn be reviewed by the Trade Court and, if necessary, by
our court.
REVERSED and REMANDED