NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AD HOC SHRIMP TRADE ACTION COMMITTEE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
HILLTOP INTERNATIONAL, AND OCEAN DUKE
CORPORATION,
Defendants-Appellees.
______________________
2012-1416
______________________
Appeal from the United States Court of International
Trade in No. 10-CV-0275, Judge Donald C. Pogue.
______________________
ON MOTION
______________________
Before LOURIE, PLAGER, and TARANTO, Circuit Judges.
PER CURIAM.
ORDER
2 AD HOC SHRIMP TRADE ACTION v. US
Plaintiff-appellant Ad Hoc Shrimp Trade Action
Committee appeals from a decision of the United States
Court of International Trade. Ad Hoc had objected to the
Department of Commerce’s use of certain data during the
fourth administrative review, under 19 U.S.C. § 1675, of
an antidumping order concerning frozen warmwater
shrimp from China. Following a remand to Commerce to
reexamine particular claims, the CIT sustained Com-
merce’s determinations.
After Ad Hoc filed its appeal from that ruling, howev-
er, Commerce issued its final results in the sixth adminis-
trative review on the same subject. See 77 Fed. Reg.
53,856 (Sept. 4, 2012). During that review, Ad Hoc had
submitted evidence purporting to show that defendant-
appellee Hilltop International—an exporter of merchan-
dise covered by the antidumping order—had provided
Commerce with false and incomplete information about
its affiliates and that those misrepresentations implicated
not just the period addressed in the sixth administrative
review but also earlier periods, including the period
addressed in the fourth administrative review at issue in
the present appeal. The United States has now moved for
an order that remands this matter to the CIT with in-
structions to remand the case to Commerce for considera-
tion of Ad Hoc’s allegations. Ad Hoc consents to the
remand, but Hilltop opposes it.
We grant the United States’ motion. As a general
matter, a remand to “reconsider [a] previous position” is
“usually appropriate” as long as Commerce’s concern is
“substantial and legitimate.” SKF USA Inc. v. United
States,
254 F.3d 1022, 1029 (Fed. Cir. 2001). Indeed, the
agency “possesses inherent authority to protect the integ-
rity of its yearly administrative review decisions, and to
reconsider such decisions on proper notice and within a
reasonable time after learning of information indicating
that the decision may have been tainted by fraud.” Tokyo
Kikai Seisakusho, Ltd. v. United States,
529 F.3d 1352,
AD HOC SHRIMP TRADE ACTION v. US 3
1361-62 (Fed. Cir. 2008). The CIT, in litigation concern-
ing the fifth administrative review regarding the anti-
dumping order at issue here, recently remanded for
Commerce to consider the same general allegations of
misrepresentation on Hilltop’s part. See Ad Hoc Shrimp
Trade Action Comm. v. United States,
882 F. Supp. 2d
1377 (Ct. Int’l Trade 2013). We follow the same course.
Relying on Home Products International, Inc. v. Unit-
ed States,
633 F.3d 1369 (Fed. Cir. 2011), Hilltop contends
that Commerce must meet a demanding standard of proof
in order to secure a remand and that the agency’s submis-
sions are too skeletal. But that case involved a remand
over the agency’s objection, meaning that the agency had
already determined (if only implicitly) that it saw no basis
to exercise whatever discretion it had to revisit its prior
decision. Here, in contrast, the agency has made no such
determination, but instead is seeking a remand to provide
it the first opportunity to consider whether such revisiting
is warranted, within whatever range of discretion it may
have. Home Products does not suggest, and we do not see,
a need for especially strong proof to justify giving the
agency that opportunity.
The United States has provided a sufficiently particu-
larized basis for the requested remand. It has identified a
concrete set of allegations and evidence involving the
period covered by the ruling under review, while taking
care not to explore the merits of the issues prematurely.
Its motion is sufficiently specific and non-speculative to
pass any applicable threshold for allowing Commerce to
look into the matter before this court proceeds with a
review of an order that might be modified.
Our decision here does not preclude or prejudge any
factual or legal arguments to be made to Commerce on
remand. The agency should hear any such arguments
and decide in the first instance whether it should, or
4 AD HOC SHRIMP TRADE ACTION v. US
lawfully can, revisit its final results in the circumstances
presented.
IT IS ORDERED THAT:
(1) Hilltop’s motion for leave to file the surreply is
granted.
(2) The United States’ motion for voluntary remand is
granted. This matter is remanded to the United States
Court of International Trade for that court to remand the
case to the Department of Commerce.
(3) Oral argument is cancelled, and the case is re-
moved from the court’s June 6, 2013 oral-argument calen-
dar.
FOR THE COURT
May 24, 2013 /s/ Jan Horaly
Date Jan Horbaly
Clerk
cc: Jordan Kahn
Joshua E. Kurland
Mark Pardo
