36 I.T.R.D. (BNA) 159
Ct. Int'l Trade2014Background
- The Department of Commerce suspended its antidumping investigation of fresh tomatoes from Mexico via a 2013 Suspension Agreement after prior suspensions (1996, 2002, 2008). Commerce concluded the agreement eliminated injury and was in the public interest.
- The Florida Tomato Exchange (FTE) sued under 28 U.S.C. § 1581(c) challenging Commerce’s decision to suspend the investigation and enter the 2013 Suspension Agreement and moved for judgment on the agency record (Rule 56.2).
- Defendant-intervenors (Mexican growers/exporter associations) opposed FTE and argued, among other defenses, that FTE is judicially estopped from asserting positions here that contradict positions FTE took previously before Commerce and the ITC.
- After filing briefs, FTE moved to strike several exhibits (Exhs. 2, 3, 4, 5, 8, 13, 14, 16) and related arguments from defendant-intervenors’ brief on the ground the exhibits are not part of the administrative record and therefore not properly before the Court.
- Defendant-intervenors responded that the challenged materials are necessary to support their judicial estoppel claim; Commerce deferred to the Court’s discretion but argued estoppel cannot rest solely on changed positions and noted public sources may be used.
- The Court denied FTE’s motion to strike, holding (1) motions to strike are disfavored and FTE failed to show bad faith or prejudice, and (2) the judicial estoppel claim arises for the first time in this Court, so extra-record evidence (the contested exhibits) is appropriate to allow the Court to assess the estoppel defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether portions of defendant-intervenors’ brief and exhibits not in the administrative record must be struck | FTE: court review is limited to agency record; extra-record exhibits were not part of that record and must be excluded | Def.-Ints.: exhibits are needed to support a judicial estoppel defense based on FTE’s prior positions; public materials may be considered | Denied: motion to strike denied; FTE failed to show bad faith/prejudice and estoppel evidence is properly considered because estoppel is raised first before this Court |
| Whether judicial estoppel can be invoked against FTE for taking positions contrary to earlier submissions to Commerce/ITC | FTE: (implicit) its challenge should be evaluated on the agency record and legal arguments are permitted | Def.-Ints.: FTE previously took positions inconsistent with its current challenge; estoppel bars contradictory litigation positions | Court permitted consideration of estoppel argument and the proffered exhibits; did not decide merits of estoppel but allowed evidence to remain |
| Whether the limited-scope rule (review confined to agency record) bars a party from presenting extra-record legal arguments or evidence | FTE: administrative-record rule limits what the court may consider | Def.-Ints./Commerce: legal arguments free; where an issue (estoppel) was not addressed by the agency, extra-record material may be relevant | Court: administrative-record rule does not bar consideration of evidence relevant to a new judicial-only issue (judicial estoppel) raised for first time before the court |
| Whether striking is appropriate under USCIT Rules 12(f) and 81(m) | FTE: exhibits are immaterial because not in record and their inclusion is improper | Def.-Ints.: filings were made in good faith and material is pertinent to estoppel; no scandalous or prejudicial content | Court: striking is extraordinary; FTE did not meet standard (no bad faith, prejudice, or scandal), so denial of strike motion appropriate |
Key Cases Cited
- New Hampshire v. Maine, 532 U.S. 742 (2001) (articulates judicial estoppel factors and discretionary nature of the doctrine)
- Pegram v. Herdrich, 530 U.S. 211 (2000) (discusses inconsistent positions and estoppel-related principles)
- Davis v. Wakelee, 156 U.S. 680 (1895) (early statement of estoppel principle preventing contradictory positions)
- Trustees in Bankr. of N. Am. Rubber Thread Co., Inc. v. United States, 593 F.3d 1346 (Fed. Cir. 2010) (judicial estoppel applies when one tribunal is an administrative agency)
- Lampi Corp. v. American Power Prods., Inc., 228 F.3d 1365 (Fed. Cir. 2000) (doctrine of judicial estoppel applies to administrative proceedings)
- Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996) (contradictory litigation positions may trigger estoppel)