MEMORANDUM and ORDER
Before the court is a motion by Plaintiff, Fuwei Films (Shandong) Co., Ltd. (“Fuwei”), to amend its complaint to add an additional claim challenging Commerce’s zeroing methodology within administrative reviews, a request that Fuwei explains is motivated by two recent Federal Circuit decisions addressing Commerce’s zeroing methodology,
Dongbu Steel Co. v. United States,
USCIT Rule 15(a) provides that “a party may amend the party’s own pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” USCIT R. 15(a). It is within the court’s discretion to determine whether to grant leave to amend.
Former Employees of Quality Fabricating, Inc. v. United States,
The issue presented by Fuwei’s motion, however, is less about the appropriateness of an amended complaint, and more about the issue of exhaustion of administrative remedies. Fuwei acknowledges that it did not challenge Commerce’s zeroing methodology during the administrative proceeding. When reviewing Commerce’s antidumping determinations, the U.S. Court of International Trade requires litigants to exhaust administrative remedies “where appropriate.” 28 U.S.C. § 2637(d) (2006). “This form of non-jurisdictional exhaustion is generally appropriate in the antidumping context because it allows the agency to apply its expertise, rectify administrative mistakes, and compile a record adequate for judicial review-advancing the twin purposes of protecting administrative agency authority and promoting judicial efficiency.”
Carpenter Tech. Corp. v. United States,
An important corollary requirement to exhaustion of administrative remedies is Commerce’s own regulatory requirement that parties raise all issues within their administrative case briefs. 19 C.F.R. § 351.309(c)(2) (2010) (“The case brief must present all arguments that continue in the submitter’s view to be relevant to the final determination.”);
Mittal Steel Point Lisas Ltd. v. United States,
As noted, Plaintiff concedes that it did not raise the zeroing issue before Commerce. Plaintiff nevertheless argues that at least one of two exceptions to the exhaustion requirement applies. Plaintiff posits that the zeroing issue involves a “pure question of law.” That exception, however, only
might
apply for a clear statutory mandate that does not implicate Commerce’s interpretation of the statute under the second step of
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
Fuwei also argues that the futility exception should apply. Fuwei, though, ignores Commerce’s regulatory requirement that parties raise all issues within their administrative case briefs. 19 C.F.R. § 351.309(c)(2). That provision carries the force of law and the court cannot simply ignore it. “The mere fact that an adverse decision may have been likely does not excuse a party from satisfying statutory or regulatory requirements to exhaust administrative remedies.”
Tianjin Magnesium Int’l Co. v. United States,
34 CIT-,-,
Consider, for example, the plaintiff in Dongbu. Commerce introduced its zeroing methodology change after the time for the submission for case briefs had passed. Plaintiff nevertheless submitted a letter challenging Commerce’s zeroing practice as an unreasonable interpretation of the dumping statute. Had Fuwei asserted its rights with equal vigor (as the regulations, and statute require), it would have created a record suitable for judicial review. Some form of perceived administrative obstinacy is no excuse. In fact, any intransigence on the agency’s part would only aid the litigant in demonstrating to the court the unreasonableness of the agency’s position.
Unfortunately, Fuwei’s failure to challenge zeroing before Commerce has left the court without a record to review on this issue. The court is therefore not inclined to excuse the requirement that Fuwei have exhausted its administrative remedies in this instance.
Accordingly, it is hereby
ORDERED that Plaintiffs motion for leave to amend its complaint is denied.