Fresh Garlic Producers Ass'n v. United States, 2016 CIT 115

Background

Commerce issued final results for the 18th administrative review of antidumping duties on fresh garlic from the PRC (period Nov. 1, 2011–Oct. 31, 2012), selecting the Philippines as the surrogate country.
Xinboda challenged Commerce's surrogate-country selection; the court remanded, finding the Philippines selection unsupported by substantial evidence (FGPA I), and after Commerce again chose the Philippines the court remanded a second time (FGPA II).
On remand Commerce reopened the administrative record to allow parties to propose and comment on surrogate-country candidates and surrogate values, setting and then extending tight submission deadlines.
Xinboda objected to reopening the record and filed a petition for writ of mandamus asking the Court to order Commerce not to reopen the record; the government moved for a partial extension of time to file remand results.
The Court considered whether mandamus was appropriate (clear and indisputable right; lack of adequate alternative remedy) and whether reopening the record was within Commerce's discretion.
The Court denied Xinboda’s mandamus petition and granted the government’s extension of time to file remand results, setting new briefing deadlines.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Commerce may reopen the administrative record on remand	Xinboda: Commerce must conduct the remand on the existing administrative record; reopening is inconsistent with judicial-review-on-the-record and the court’s mandate	Gov't: Commerce may reopen the record on remand unless the court forbids it; reopening does not preclude judicial review on the administrative record	Court: Commerce may reopen the record; Xinboda has no clear and indisputable right to relief
Whether mandamus is appropriate to prevent reopening	Xinboda: Extraordinary relief warranted because reopening will impose burdens, delay liquidation, and violate procedural limits	Gov't: Mandamus is drastic; Xinboda has alternative remedies and may challenge reopening after remand results	Court: Mandamus denied — Xinboda lacks both a clear right and an inadequate alternative remedy
Whether the burden/delay from reopening makes post-remand judicial review inadequate	Xinboda: Litigation cost and delayed liquidation make later challenges inadequate	Gov't: Costs and delay are ordinary litigation burdens and do not deprive Xinboda of adequate relief	Court: Burden and delay do not render the alternative remedy inadequate
Whether the court’s prior remand forbade reopening the record (rule of mandate)	Xinboda: Reopening violates the court’s prior decision and mandate	Gov't: Prior remand did not forbid reopening; court previously anticipated Commerce might compile a new surrogate list	Court: Reopening is consistent with the prior remand and allowed

Key Cases Cited

In re Procter & Gamble Co., 749 F.3d 1376 (Fed. Cir. 2014) (mandamus is an extraordinary remedy; petitioner must show clear and indisputable right and lack of adequate alternative)
Kerr v. United States District Court, 426 U.S. 394 (1976) (mandamus is drastic and for extraordinary circumstances)
Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004) (standards for mandamus including clear right and no adequate alternative)
Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 (1989) (mandamus prerequisites and limits)
In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009) (mandamus standards reaffirmed)
NTN Bearing Corp. of America v. United States, 132 F. Supp. 2d 1102 (CIT 2001) (Commerce may consider new information on remand absent a court prohibition)
Nippon Steel Corp. v. International Trade Comm'n, 345 F.3d 1379 (Fed. Cir. 2003) (agency discretion to reopen evidentiary record on remand)
Decca Hospitality Furnishings, LLC v. United States, 427 F. Supp. 2d 1249 (CIT 2006) (circumstances where delayed relief via liquidation was deemed inadequate alternative)