Tri Union Frozen Products, Inc. v. United States, 2016 WL 878004

Background

VASEP (Vietnam Association of Seafood Exporters and Producers) moved for judicial notice to support its Rule 56.2 challenge to Commerce’s final results in the 8th administrative review of antidumping duties on frozen warmwater shrimp from Vietnam (period Feb 1, 2012–Jan 31, 2013).
VASEP sought notice of (1) public comments submitted to Commerce on differential pricing and (2) academic materials (online statistics textbook chapter and conference paper) explaining Cohen’s d and related statistical principles.
The United States opposed, arguing judicial notice is inappropriate in a record-review case and that the proffered materials are disputed and not the kind of indisputable facts Rule 201 allows.
At oral argument, parties presented positions; other parties took no position on the motion.
The court denied VASEP’s motion, reasoning the materials are subject to reasonable dispute, do not meet Rule 201(b)’s criteria (generally known or readily and accurately determinable from unquestionable sources), and would improperly supplement the administrative record.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court may take judicial notice of public comments on Commerce website	The comments support VASEP’s view that Commerce’s differential-pricing approach is flawed and should be judicially noticed	Judicial notice is improper because the comments express disputed positions and their truth is not indisputable; using them would convert review into de novo	Denied: comments are subject to reasonable dispute and do not meet Rule 201(b) criteria
Whether the court may take judicial notice of academic materials explaining Cohen’s d	The academic sources explain statistical principles underlying differential-pricing analysis and undermine Commerce’s rationale; they’re relevant and were indirectly relied on by Commerce	Materials are not indisputable facts, their content is subject to debate, and they are not ‘‘generally known’’ or from sources whose accuracy cannot reasonably be questioned	Denied: academic materials are not the proper subject of judicial notice and would improperly supplement the administrative record
Whether prior Commerce decisions or materials relied upon by Commerce convert those underlying materials into judicially noticeable facts	VASEP contends Commerce’s reliance on prior findings makes the underlying materials relevant for notice	Government: Commerce relied on a prior determination’s finding, not on the underlying extrarecord materials; reliance on a decision does not import its entire record into this review	Court: Taking notice of an agency’s determinations (as published) may be appropriate, but VASEP did not seek notice of facts that are merely that the documents existed; it sought their truth—impermissible here
Whether taking judicial notice would improperly supplement the administrative record	VASEP argued the materials are necessary to undermine Commerce and for meaningful review	Government argued focal point is administrative record; supplementation via judicial notice circumvents record-review limits	Court: Denied—judicial notice cannot be used to create a new record; no exception shown to permit supplementation

Key Cases Cited

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010) (took judicial notice of undisputed government website information where authenticity and accuracy were uncontested)
Laborers' Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600 (7th Cir. 2002) (judicial notice of bank-ownership facts verifiable on an official government website)
Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933 (Fed. Cir. 1990) (affirming court’s judicial notice of an agency’s published determination when the fact noticed was the agency’s announced result)
Axiom Res. Mgmt. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (administrative record generally may not be supplemented absent necessity for meaningful review)
Camp v. Pitts, 411 U.S. 138 (1973) (judicial review should focus on the administrative record in existence at the time of agency decision)