Slip Op. 05-163
UNITED STATES COURT OF INTERNATIONAL TRADE
SHAKEPROOF ASSEMBLY COMPONENTS
DIVISION OF ILLINOIS TOOL WORKS,
INC.,
Before: Richard W. Goldberg,
Senior Judge
Plaintiff,
Court No. 05-0404
v.
UNITED STATES,
Defendant,
and
HANG ZHOU SPRING WASHER CO.,
LTD.,
Defendant-
Intervenor.
OPINION
[Commerce’s partial consent motion for voluntary remand
granted.]
Dated: December 22, 2005
McDermott, Will & Emery, LLP (David John Levine) for Plaintiff
Shakeproof Assembly Components Division of Illinois Tool Works,
Inc.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director; Patricia M. McCarthy, Deputy Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(David Samuel Silverbrand); Ada Bosque, Office of the Chief
Counsel, U.S. Department of Commerce, for Defendant United
States.
White & Case, LLP (Adams Chi-Peng Lee and Emily Lawson) for
Defendant-Intervenor Hang Zhou Spring Washer Co., Ltd.
Court No. 05-00404 Page 2
GOLDBERG, Senior Judge: This case is before the Court on a
partial consent motion for voluntary remand of the final results
of an administrative review of an antidumping duty order by the
U.S. Department of Commerce (“Commerce”).
I. BACKGROUND
In Certain Helical Spring Lock Washers from the People’s
Republic of China, 70 Fed. Reg. 28274 (Dep’t Commerce May 17,
2005) (final determination) (the “Final Results”), Commerce
determined that the weighted average dumping margin on sales of
helical spring lock washers (the “subject imports”) to the
United States by the Chinese respondent, Hang Zhou Spring Washer
Co., Ltd. (“Defendant-Intervenor”), was 0.00 percent of the
adjusted U.S. price for the subject imports as determined by
Commerce. Final Results at 28274. This resulted in calculation
of an antidumping duty rate of the same percentage. Id.
To reach this conclusion, it was necessary for Commerce to
value the factors of production associated with the subject
imports in order to calculate their normal value.1 Id. at 28275;
1
Normal value is a critical variable in antidumping
calculations. It is intended to represent the price at which
subject imports are first sold in their home market (or, where
necessary, a comparable market). See 19 U.S.C. §
1677b(a)(1)(A)-(C) (1999). For antidumping investigations
involving imports from non-market economies, like the People’s
Republic of China, Commerce may determine normal value by
looking to the cumulated value of the factors of production
associated with the subject imports. Id. § 1677b(c)(1). Once
calculated, the normal value of subject imports is compared with
their export price (or, where necessary, their constructed
Court No. 05-00404 Page 3
see also Defendant’s Partial Consent Motion for a Voluntary
Remand (“Commerce’s Mot.”) at 1. One such factor of production
under consideration by Commerce was the value of so-called
“plating services.” Id. Commerce performed the same plating
services valuation in both the preliminary results and the Final
Results. Id.; see also Certain Helical Spring Lock Washers from
the People’s Republic of China, 69 Fed. Reg. 64903, 64905 (Dep’t
Commerce Nov. 9, 2004) (preliminary determination); Defendant-
Intervenor’s Opposition to Defendant’s Motion for Voluntary
Remand (“Def.-Int.’s Opp.”) at 2. Although provided the
opportunity to do so, the domestic petitioner, Shakeproof
Assembly Components Division of Illinois Tool Works, Inc.
(“Plaintiff”), did not object to Commerce’s plating services
valuation in its comments on the preliminary results or case
brief to the agency. Final Results at 28275.2
Following publication of the Final Results, Plaintiff
commenced this action by filing a summons with the Court on June
16, 2005. The next day, Plaintiff also timely filed with
Commerce a request to correct certain “ministerial errors”
export price) to determine if the subject imports are being sold
at less than fair value (or dumped) in the United States.
Id. § 1677b(a).
2
Rather, it was Defendant-Intervenor who raised several
objections to Commerce’s calculation of normal value, which
Plaintiff affirmatively defended as “in accordance with law and
substantially supported by evidence.” Final Results at 28275.
Court No. 05-00404 Page 4
purportedly made in the calculation of the dumping margin for
Defendant-Intervenor. See Complaint dated July 15, 2005
(“Compl.”) ¶ 6. Specifically, Plaintiff alleged that Commerce
had valued the plating services factor of production
erroneously, leading to a flawed normal value calculation and
thus an incorrect dumping margin. Id. Plaintiff argued that,
while Commerce had applied the correct plating price, it did so
to the wrong weight value (i.e., Commerce applied the price to
each kilogram of raw plating materials instead of each kilogram
of lock washers). Id. ¶ 7. As proof of the mistake, Plaintiff
noted that Commerce had “correctly applied” the plating price
derived from the same source document in the previous
administrative review of the same antidumping duty order. Id.
Commerce denied Plaintiff’s request to correct the Final
Results on July 8, 2005, concluding that Plaintiff’s allegations
“pertain[ed] to a methodological rather than ministerial issue”
and were therefore not subject to correction using the
ministerial error procedure.3 Id. ¶ 10 (quoting Mem. to Edward
C. Yang from Wendy J. Frankel, Re: Antidumping Duty Review of
Certain Helical Spring Lock Washers from the People’s Republic
3
Exercised shortly after publication of a final determination,
Commerce’s ministerial error procedure is intended to give
parties the opportunity to bring to the agency’s attention any
“errors in addition, subtraction, or other arithmetic function,
clerical errors resulting from inaccurate copying, duplication,
or the like, and any other type of unintentional error which
[Commerce] considers ministerial.” 19 U.S.C. § 1675(h) (1999).
Court No. 05-00404 Page 5
of China – Ministerial Error Allegations in Final Results, dated
July 8, 2005). Three days later, on July 11, 2005, “senior
Commerce officials discussed with counsel for [Plaintiff] . . .
a course of action whereby, following the filing of a complaint,
Commerce would move this Court for a ‘voluntary remand’ in order
for Commerce to reconsider its decision.” Compl. ¶ 11.
Although described in Plaintiff’s complaint, this ex parte
communication was not documented on the administrative record.
However, two other conversations which took place on that same
day were made part of the record: a senior Commerce official was
contacted separately by staff members from the offices of
Senator Herb Kohl and Congresswoman Gwen Moore regarding
Commerce’s ministerial error determination. See Mem. to File
from Susan Kuhbach, Acting Assistant Secretary, Import
Administration, Re: Phone Conversation Regarding Ministerial
Errors Memorandum, dated July 11, 2005. Specifically, the
Congressional staffers sought a delay in Commerce’s ministerial
error determination to permit Plaintiff additional time to meet
with the agency. Id. The Commerce official advised the
Congressional staffers that this determination had in fact
already been issued, and that the agency “did not view the issue
as a ministerial error; and that if there was a possible
methodological error, the only way for [Commerce] to consider it
at this point would be if [Commerce] were sued.” Id.
Court No. 05-00404 Page 6
Plaintiff filed its complaint four days later, on July 15,
2005. The sole issue raised in the complaint concerned the
allegedly erroneous valuation of the plating services factor of
production and Commerce’s failure to correct it through the
ministerial error procedure. Compl. ¶ 12. On October 13, 2005,
Commerce filed a motion requesting voluntary remand of the Final
Results. Commerce’s Mot. at 1. In its motion, Commerce did not
admit error in the Final Results; rather, Commerce requested
remand to enable the agency to “examine the methodologies
available to value plating to discern which methodology leads to
the most accurate results and explain its choice of methodology
employed.” Id. at 2. In its motion, Commerce also indicated
that it would possibly seek additional information to augment
its inquiry on this issue. Id. Plaintiff filed a brief
supporting Commerce’s request for voluntary remand on November
8, 2005. See Plaintiff’s Response in Support of Defendant’s
Partial Consent Motion for Voluntary Remand (“Pl.’s Resp.”) at
1. Defendant-Intervenor filed its brief in opposition on the
same day. Def.-Int.’s Opp. at 1.
II. JURISDICTION AND JUSTICIABILITY
Pursuant to 28 U.S.C. § 1581(c), the Court has jurisdiction
over cases involving appeals of the final results of
administrative reviews performed by Commerce in the context of
antidumping proceedings. Before exercising this jurisdiction in
Court No. 05-00404 Page 7
a given case, however, the Court is directed by statute to
require the exhaustion of administrative remedies “where
appropriate[.]” 28 U.S.C. § 2637(d) (1999). Mindful of this
prudential consideration, the Court believes that there is a
question as to whether Plaintiff’s failure to contest the
valuation of plating services in response to Commerce’s
preliminary results should give rise to partial dismissal of
this action for failure to exhaust. Nonetheless, after careful
consideration, the Court concludes that dismissal is not
warranted as to Plaintiff’s claim of error in the Final Results.
Exhaustion is required principally because “[a] reviewing
court usurps the agency’s function when it sets aside a
determination upon a ground not previously presented and
deprives the agency of an opportunity to consider the matter,
make its ruling, and state the reasons for its action.” Wieland
Werke, AG v. United States, 13 CIT 561, 567, 718 F. Supp. 50, 55
(1989). As a result of these concerns, the Court has generally
declined to exercise jurisdiction over a claim involving
methodological objections raised to Commerce only during the
ministerial error procedure following a final determination.
See, e.g., Tianjin Mach. Imp. & Exp. Corp. v. United States, 28
CIT ___, ___, 353 F. Supp. 2d 1294, 1306-07 (2004), aff’d,
Appeal No. 05-1077 (Fed. Cir. Oct. 11, 2005); Peer Bearing Co.
v. United States, 23 CIT 454, 457-60, 57 F. Supp. 2d 1200, 1204-
Court No. 05-00404 Page 8
06 (1999); Aramide Maatschappij V.o.F. v. United States, 19 CIT
1094, 1097-98, 901 F. Supp. 353, 357-58 (1995). Nevertheless,
the Court has found it appropriate to exercise jurisdiction
under such facts where Commerce itself has voiced support for
the belated claim by requesting voluntary remand. See, e.g.,
Magnesium Corp. of Am. v. United States, 20 CIT 1092, 1104-05,
938 F. Supp. 885, 898 (1996), aff’d, 166 F.3d 1364 (Fed. Cir.
1999); Ad Hoc Comm. of S. Cal. Producers of Gray Portland Cement
v. United States, 19 CIT 1398, 1403-04, 914 F. Supp. 535, 541-42
(1995); Sugiyama Chain Co. v. United States, 16 CIT 526, 533-35,
797 F. Supp. 989, 996-97 (1992).
Although the Court’s rationale for this past exercise of
jurisdiction has not been fully articulated, the Court has noted
in other contexts that it “may exercise its discretion to
prevent knowingly affirming a determination with errors.”
Torrington Co. v. United States, 21 CIT 1079, 1082 (1997).
Likewise, where Commerce raises serious concerns about the
accuracy of a determination through a request for voluntary
remand, the Court may exercise its discretion with regard to the
exhaustion of administrative remedies in order to subject to
review a potentially erroneous administrative determination.
Cf. Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S.
316, 321 (1961) (in weighing reconsideration request, noting
significance of “the public interest in reaching what,
Court No. 05-00404 Page 9
ultimately, appears to be the right result”). The desire to
achieve accuracy in an administrative determination seriously
questioned by Commerce before the Court, combined to a lesser
extent with the fact that recourse to the ministerial error
procedure does provide Commerce with at least some opportunity
to consider and rule on an objection at the administrative
level, supports the Court’s exercise of jurisdiction over a
substantive claim raised only as ministerial error. See Consol.
Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir.
2003) (noting Court’s “discretion to identify circumstances
where exhaustion of administrative remedies does not apply”).
In light of the foregoing, the Court concludes that it
would be inappropriate to require strict exhaustion of
administrative remedies to Plaintiff’s claim of error in the
Final Results. As discussed in detail infra at Part IV.A-B, the
Court has determined that Commerce’s request for voluntary
remand is based on a substantial and legitimate concern about a
certain aspect of the Final Results. Commerce’s concern is
sufficiently serious to call into question the accuracy of this
determination. In order to correct the very real possibility of
an inaccuracy in the Final Results, and in light of Plaintiff’s
recourse to at least the ministerial error procedure, the Court
in its sound discretion chooses to exercise jurisdiction over
Plaintiff’s claim and consider Commerce’s corresponding request
Court No. 05-00404 Page 10
for voluntary remand.
III. STANDARD OF REVIEW
Turning to its review of the merits of that request, the
Court notes that, “[d]ue to the tripartite nature of a case like
this, remand is not the automatic result of government
acquiescence therein.” Brother Indus., Ltd. v. United States,
15 CIT 332, 344, 771 F. Supp. 374, 386 (1991). Rather, in SKF
USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001), the
U.S. Court of Appeals for the Federal Circuit (the “Federal
Circuit”) discussed the appropriate standard of review to apply
to an agency’s motion for voluntary remand of an administrative
determination.4 There, the Federal Circuit distinguished among
the various types of voluntary remand situations which could
4
Defendant-Intervenor contends that SKF is not applicable to
this case, Def.-Int.’s Br. at 6, because, unlike SKF, Commerce’s
“remand request is not being made so it may confer a benefit on
the parties paying duties.” Id. at 5. In the Court’s view,
this factual distinction does not preclude reference to SKF for
the appropriate standard of review. The SKF court described
general legal principles concerning the obligations of a court
charged with reviewing agency actions and evaluating agency
litigation positions. There is no indication that the SKF court
intended for these review standards to vary based on the
specific factual distinction noted by Defendant-Intervenor, see
Corus Staal BV v. United States, 27 CIT ___, ___, 259 F. Supp.
2d 1253, 1257 (2003) (questioning equal treatment of remands
benefiting petitioners and respondents but nonetheless applying
SKF standard of review framework), aff’d, 395 F.3d 1343 (Fed.
Cir. 2005), nor does this Court believe that such variance is
warranted.
Court No. 05-00404 Page 11
arise. See SKF, 254 F.3d at 1027-30. Where, as here,5 the
situation entails “no intervening events”6 but the agency
nonetheless requests “a remand (without confessing error) in
order to reconsider its previous position[,]” the Federal
Circuit indicated that a “reviewing court has discretion over
whether to remand.” Id. at 1029. The SKF court further noted
that remand is generally appropriate “if the agency’s concern is
substantial and legitimate[,]” but may be refused “if the
agency’s request is frivolous or in bad faith.” Id.
IV. DISCUSSION
Defendant-Intervenor objects to Commerce’s request for
voluntary remand on a number of grounds. Initially, Defendant-
Intervenor argues that Commerce has not articulated a
substantial and legitimate basis for remand in accordance with
the SKF standard. Def.-Int.’s Br. at 6. Because Commerce “has
not specifically apprised the Court of [sic] whether the reason
for remand is an error or change in methodology[,]” Defendant-
Intervenor contends that Commerce has provided insufficient
5
Plaintiff contends that “Commerce acknowledges that it
erred[,]” Pl.’s Resp. at 1, which, if true, would require the
Court to apply a somewhat different standard of review to the
voluntary remand request under the SKF framework. However, the
Court can find no support for Plaintiff’s assertion in
Commerce’s remand request. Rather, in the Court’s view,
Commerce made clear its “wish[] to reconsider its position
‘without confessing error.’” Commerce’s Mot. at 2 (quoting SKF,
254 F.3d at 1029).
6
Examples of intervening events include “a new legal decision or
the passage of new legislation.” SKF, 254 F.3d at 1028.
Court No. 05-00404 Page 12
justification for voluntary remand. Id. Defendant-Intervenor
next argues that the need for finality in administrative
proceedings militates against voluntary remand here. Id. at 7.
Defendant-Intervenor notes that the statute and regulations
governing antidumping proceedings already provided Plaintiff
with ample opportunity to raise its objections to the plating
services valuation. Id. at 7-8. Defendant-Intervenor argues
that voluntary remand would unfairly allow Plaintiff “a second
bite of the apple” purely because Plaintiff was able to marshal
enough domestic political pressure to force Commerce to
reconsider an otherwise final result. Id. at 8. Lastly,
Defendant-Intervenor contests the scope of Commerce’s remand
request. Id. at 9. Defendant-Intervenor contends that
Commerce’s stated intention to potentially reopen the record in
connection with the requested remand is unwarranted, as Commerce
collected sufficient information on plating services from both
parties during the course of the proceedings below. Id.
After careful consideration of Defendant-Intervenor’s
objections, particularly in light of the documented post-
determination political maneuvering which took place in this
case, the Court nonetheless decides for the reasons set forth
below to grant the voluntary remand requested by Commerce.
Court No. 05-00404 Page 13
A. The Need for Commerce to Explain an Apparent Departure from
Past Practice Is a Compelling Concern Weighing in Favor of
Voluntary Remand
First, Commerce has provided a compelling justification for
its remand request. In support of its motion, Commerce
explained that the Final Results were based in part on a
methodology which differed from one previously used in a
substantially similar antidumping proceeding. Commerce’s Mot.
at 1-2. Commerce applied this methodology without justifying
this seemingly disparate treatment, id., apparently because an
oversight prevented the agency from recognizing the availability
of alternative methodologies. Pl.’s Br. at 1; Compl. ¶ 8.7 It
is an established principle of administrative law that an agency
has a “duty to explain its departure from prior norms.”
Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412
U.S. 800, 808 (1973). Seeking consistency in antidumping
proceedings, the Court has repeatedly applied this principle to
determinations made by Commerce. See, e.g., Allied Tube &
Conduit Corp. v. United States, 29 CIT ___, ___, 374 F. Supp. 2d
1257, 1262 (2005) (noting that “Commerce must explain why it
chose to change its methodology and demonstrate that such change
is in accordance with law and supported by substantial
evidence”); Hussey Copper, Ltd. v. United States, 17 CIT 993,
7
The Court may consider the supporting justifications for
voluntary remand provided by non-moving parties, in addition to
those provided by the agency requesting remand. Corus Staal, 27
CIT at ___, 259 F. Supp. 2d at 1257.
Court No. 05-00404 Page 14
998, 834 F. Supp. 413, 419 (1993) (remanding because Commerce
“failed to adequately articulate the reasons for its departure
from its normal practice”).
Viewed in this light, the justification for Commerce’s
motion for voluntary remand is persuasive. Commerce (with
Plaintiff’s support) has sufficiently demonstrated to the Court
that it likely did depart from a former methodology in the Final
Results without explanation.8 If properly challenged on the
merits, this type of agency action would likely provoke a court-
ordered remand – i.e., the Court would require Commerce to
“reconsider its previous position.”9 SKF, 254 F.3d at 1029. It
is immaterial that Commerce has not specifically indicated
“whether the reason for [the requested] remand is an error or
change in methodology.” Def.-Int.’s Br. at 6. Rather, the need
for an agency to adequately address a seeming departure from
past practice – irrespective of the cause of such departure – is
8
Compare Ninth Review Preliminary Results Calculation Memorandum
for Hangzhou, dated Oct. 31, 2003, at 3 (“We multiplied this
per kilogram surrogate value by the weight of the lock washer
unit to value the plating process per unit.”); Certain Helical
Spring Lock Washers from the People's Republic of China, 69 Fed.
Reg. 12119, 12121 (Dep’t Commerce Mar. 15, 2004) (final
determination) (adopting calculation memorandum methodology);
with Final Results at 28275 (adopting different calculation of
same surrogate value without explanation).
9
The Court does not mean to imply that any agency action which
might provoke the Court to remand a final determination is per
se a compelling or persuasive justification for voluntary
remand. This is necessarily a case-by-case analysis.
Court No. 05-00404 Page 15
itself a significant concern weighing in favor of voluntary
remand.10 Cf. Ugine-Savoie Imphy v. United States, 24 CIT 1246,
1252, 121 F. Supp. 2d 684, 690 (2000) (in preliminary injunction
context, noting that “public interest is served by ensuring that
[Commerce] complies with the law, and interprets and applies
[the] international trade statutes uniformly and fairly”)
(quotation marks omitted).
B. Finality Concerns Do Not Outweigh the Otherwise Substantial
and Legitimate Basis for Voluntary Remand in this Case
Second, the need for finality – although an important
consideration – does not outweigh the justification for
voluntary remand presented by Commerce in this case.
“[C]oncerns for finality do exist[,]” Corus Staal, 27 CIT at
___, 259 F. Supp. 2d at 1257, and are properly weighed against
an agency’s proffered rationale for voluntary remand in order to
determine if this rationale is in fact “substantial and
legitimate[.]” SKF, 254 F.3d at 1029. As Defendant-Intervenor
rightly notes, serious finality concerns in a given case could
call into question the legitimacy of an agency’s remand request
and potentially give rise to an inference of bad faith.
However, such serious concerns do not exist here.
10
Further, it is customary on initial remand to permit an agency
the choice between better explaining its departure and modifying
its determination to achieve conformity with past practice. The
Court can conceive of no reason why this discretion should be
limited ex ante simply because the agency, rather than a
reviewing court, first identifies a potential problem in an
administrative determination.
Court No. 05-00404 Page 16
As an initial matter, final determinations by Commerce in
the antidumping arena are, for better or for worse, subject to
routine appeal to this Court. This is true despite the various
opportunities to reach consensus on the administrative level,
despite the delay engendered by such appeal, and despite the
relative difficulty of likely “having to deal with two different
[agency] determinations (i.e., the original final results and
the remand results).” Def.-Int.’s Br. at 7. Notwithstanding
Defendant-Intervenor’s arguments to the contrary, this case is
fairly typical of such an appeal: Plaintiff timely filed an
action alleging non-frivolous objections to Commerce’s
determination which were previously raised in some form at the
administrative level. Had Defendant-Intervenor been
particularly unhappy with the Final Results, there can be no
reasonable doubt that it too would have followed this course of
conduct. See Hangzhou Spring Washer Co., Ltd. v. United States,
29 CIT ___, 387 F. Supp. 2d 1236 (2005) (remanding determination
to agency for review of certain valuations to which importer
objected). In short, the procedural posture of this case does
not present any unusually serious finality concerns.
However, this case is somewhat exceptional with respect to
the documented political machinations which preceded Commerce’s
request to reconsider an otherwise final determination. As the
Court has previously observed in the voluntary remand context:
Court No. 05-00404 Page 17
[E]xperience has shown that the agency can be put in
the unfortunate position of being requested by
powerful domestic interests and Congress persons to
alter positions to favor the domestic party. The
agency should be protected from such post-
determination maneuvering as much as is possible, in
order to avoid charges of bad faith decision-making
and needless litigation.
Corus Staal, 27 CIT at ___ n.4, 259 F. Supp. 2d at 1257 n.4. To
protect the finality of agency decisions in cases involving
post-determination political maneuvering, the Court exercises
caution before accepting as legitimate proffered justifications
for voluntary remand.
Here, the record evidence demonstrates a certain degree of
political interest in the Final Results; however, upon careful
examination, the Court concludes that this is not a case where
such interest appears to have completely driven the agency’s
remand request. Commerce was given an opportunity to consider
Plaintiff’s objections in the administrative setting through the
ministerial error procedure, where the agency concluded that it
would be inappropriate to address Plaintiff’s concerns. In the
Court’s view, this conclusion reflects a certain integrity in
the agency’s decision-making process. If Commerce had been
truly captured by the domestic industry’s lobby, as intimated by
Defendant-Intervenor, it was within the agency’s power to
mischaracterize Plaintiff’s objections as ministerial errors (at
least a colorable argument under these facts) and seek leave
from the Court to redress them at the administrative level. But
Court No. 05-00404 Page 18
Commerce did not do that. Instead, Commerce issued a decision
contrary to Plaintiff. Commerce was then contacted by domestic
political interests; but, even here, the subject of those
conversations belies an immediate inference of political
pressure to request remand. The memorandum summarizing these
telephone calls indicates that Congressional staffers contacted
Commerce in order to influence the timing of the agency’s
ministerial error determination, only to learn that this
determination had already been issued. The memorandum does not
mention discussion of a potential voluntary remand request by
Commerce or any other possible agency litigation position in the
event of appeal to this Court. As such, there is no direct
evidence that Commerce was improperly pressured to reopen the
Final Results through voluntary remand.
Of course, it is possible that other, off the record
conversations took place between Commerce and political
interests on the topic of voluntary remand. “The [C]ourt is
sensitive to the problems parties face in gathering specific
proof of unlawful political suasion. Such evidence, after all,
is seldom highlighted on dog-earred [sic] pages of the
administrative record.” Saha Thai Steel Pipe Co. v. United
States, 11 CIT 257, 260, 661 F. Supp. 1198, 1202 (1987).
Nonetheless, there exists a “presumption of governmental good
faith” in administrative proceedings. United States v. Roses,
Court No. 05-00404 Page 19
Inc., 706 F.2d 1563, 1566 (Fed. Cir. 1983). The Court will not
abandon this presumption absent a strong evidentiary showing,
sometimes characterized as “well-nigh irrefragable proof” of bad
faith. Kalvar Corp. v. United States, 543 F.2d 1298, 1301-02
(Ct. Cl. 1976).11 Here, while there is evidence that one ex
parte conversation took place off the record,12 this alone is not
“tantamount to [the] showing of malice or conspiracy” against
Defendant-Intervenor that would be necessary to rebut the
presumption of governmental good faith. Id., 543 F.2d at 1302.
At best, Defendant-Intervenor has demonstrated the mere
possibility that Commerce may have been improperly motivated to
seek voluntary remand of an otherwise final agency
determination. Against this possibility, the Court must weigh
the justification for voluntary remand advanced by Commerce. As
previously noted, the Court finds this justification compelling
and, despite the ambiguous finality concerns raised by
Defendant-Intervenor, concludes that this is a sufficiently
11
“This is a decision of a predecessor court binding on [the
Federal Circuit].” Roses, Inc., 706 F.2d at 1566.
12
It is not entirely clear to the Court that the communication
which took place between Commerce and Plaintiff after issuance
of the Final Results and Commerce’s ministerial error decision
was strictly required to be memorialized and placed on the
record. See 19 U.S.C. § 1677f(a)(3) (1999) (requiring Commerce
to maintain records of ex parte communications which provide the
agency with “factual information in connection with a
proceeding”). The Court need not reach this question here. For
purposes of the analysis of governmental good faith, it is
enough to note that Commerce found it appropriate to place on
the record other conversations which took place on the same day.
Court No. 05-00404 Page 20
substantial and legitimate basis for remand. Accordingly, the
Court exercises its discretion to grant the remand request.
C. The Scope of Commerce’s Remand Request is Appropriate
Finally, the Court must consider whether the scope of
Commerce’s remand request is appropriate in light of the
agency’s stated intention to potentially reopen the
administrative record in connection with its review. Defendant-
Intervenor is correct that Commerce solicited and collected from
both parties valuation information on plating services during
the course of the proceedings below. Nevertheless, this prior
data collection does not preclude Commerce from seeking
additional information on remand. The alternative, previously
overlooked methodology for valuing plating services may very
well require information that Commerce unwittingly failed to
collect for purposes of the Final Results. Further, the Federal
Circuit has disfavored limited remands which restrict Commerce’s
ability to collect and fully analyze data on a contested issue.
Am. Silicon Techs. v. United States, 334 F.3d 1033, 1038-39
(Fed. Cir. 2003). “By sharply limiting Commerce’s inquiry,” the
Court is concerned that, in this case, it may “actually
prevent[] Commerce from undertaking a fully balanced
examination[.]” Id. at 1039. Consequently, the Court concludes
that the scope of Commerce’s remand request, to include the
ability to reopen the administrative record as to the single
Court No. 05-00404 Page 21
contested issue of plating services valuation, is appropriate.
V. CONCLUSION
For the foregoing reasons, Commerce’s partial consent
motion for voluntary remand is granted and a separate order will
be issued accordingly. Although granting the agency’s motion,
the Court remains troubled by what may be fairly characterized
as the appearance (if not existence) of improper political
influence on an administrative determination. The Court will be
watchful that Commerce’s decision on remand is in fact supported
by substantial evidence and in accordance with law.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: December 22, 2005
New York, New York