Itochu Building Products v. United States
2013 U.S. App. LEXIS 17163
| Fed. Cir. | 2013Background
- Commerce issued an antidumping-duty order on certain steel nails effective January 23, 2008; an administrative review for Jan 23, 2008–July 31, 2009, was later completed.
- Mid Continent asked Commerce to revoke the order as to four types of nails; Itochu supported revocation and urged the revocation be effective as of January 23, 2008 (to cover unliquidated entries).
- Itochu submitted written comments, met with Commerce officials, and provided prior determinations supporting its requested effective date before Commerce published preliminary results.
- Commerce’s preliminary and final changed-circumstances results revoked the order as to the four nail types but set the effective date as August 1, 2009 (the day after the completed administrative-review period), rejecting Itochu’s January 23, 2008 date.
- Itochu did not submit further comments after the preliminary results; it then challenged the effective-date determination in the Court of International Trade, which dismissed for failure to exhaust administrative remedies under 28 U.S.C. § 2637(d).
- The Federal Circuit reversed, holding dismissal was an abuse of discretion because requiring resubmission would have served no practical purpose and would have risked prejudicial delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to exhaust administrative remedies was appropriate under 28 U.S.C. § 2637(d) | Itochu: exhaustion was unnecessary because it had already presented the effective-date argument to Commerce and resubmission would be futile and would cause prejudicial delay | U.S./Commerce: Itochu should have resubmitted comments after the preliminary results; exhaustion is required unless inappropriate | Reversed: dismissal was an abuse of discretion because exhaustion would have served no practical purpose and risked harm to Itochu |
| Applicability of futility exception to exhaustion | Itochu: resubmitting would have been futile because Commerce repeatedly invoked its "recent practice" and was defending that legal position in litigation | Commerce: no showing of futility; parties must raise arguments when Commerce invites comments | Held: futility applicable — Commerce’s consistent position and litigation posture made a reasonable prospect of change negligible, so exhaustion was inappropriate |
| Whether failure to cite the specific regulation (19 C.F.R. § 351.309) in the preliminary notice relieved Itochu of any exhaustion duty | Itochu: lack of explicit citation to § 351.309 meant it was not on notice to refile; thus exhaustion shouldn’t be required | Commerce: exhaustion requirement arises from § 2637(d) and may apply even absent citation to the regulation | Held: court rejected a per se rule excusing exhaustion for lack of regulatory citation; but on these facts exhaustion was still inappropriate for other reasons |
Key Cases Cited
- Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir.) (exhaustion doctrine in trade cases; discussed futility and administrative filing requirements)
- Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024 (Fed. Cir.) (exhaustion appropriateness; pure questions of law may not require exhaustion)
- McCarthy v. Madigan, 503 U.S. 140 (U.S.) (purposes of exhaustion: agency authority and judicial efficiency)
- Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375 (Fed. Cir.) (distinguishable exhaustion context in administrative-review proceedings)
- Bendure v. United States, 554 F.2d 427 (Ct. Cl.) (futility exception — avoid ‘‘obviously useless motions’’)
- Trs. in Bankr. of N. Am. Rubber Thread Co. v. United States, 533 F. Supp. 2d 1290 (Ct. Int’l Trade) (prior discussion of Commerce’s legal position on effective dates)