United States Court of International Trade

Slip Op. 21-31

Before the Court in Celik Halat ve Tel Sanayi A.S. v. United States, et. al. Court No. 20-03843, Slip Op. 21-31 (March 24, 2021) was Defendant’s motion to dismiss “Plaintiff’s complaint challenging Commerce’s preliminary determination in the antidumping duty investigation into prestressed concrete steel wire strand from Turkey.” Id. at 1. Plaintiff challenged the determinations because Commerce refused to use plaintiffs’ documents in the investigation because they were untimely filed due to computer troubles.  Defendant argued that the Court lacked jurisdiction over Plaintiff’s complaint, filed under 28 U.S.C. § 1581(i), because the remedy available under § 1581(c) was not manifestly inadequate. Id. at 2.  For the following reasons, the Court granted Defendant’s motion to dismiss. Id. at 2.

Manifest inadequacy exists when, although there is jurisdiction under 28 U.S.C. § 1581(a)–(h), filing suit under one of those subsections would be an “exercise of futility,” meaning that it is “incapable of producing any result.” Id. at 7. “That judicial review may be delayed by requiring a party to wait for Commerce’s final determination is not enough to render judicial review under § 1581(c) manifestly inadequate.” Id. “Neither the burden of participating in the administrative proceeding nor the business uncertainty caused by such a proceeding is sufficient to constitute manifest inadequacy.” Id. “Financial hardship resulting from review under § 1581(a)–(h) does not constitute manifest inadequacy.” Id. In this case, the Court found that “recourse under 28 U.S.C. § 1581(c) is not manifestly inadequate because judicial review pursuant to subsection (c) provides the remedy Celik seeks—namely, a remand order directing Commerce to reconsider, further explain its refusal, or accept Celik’s submissions. Id. at 8. The Court explained that “Celik’s allegation that it would lose its entire U.S. sales market as a result of participation in administrative and judicial proceedings does not render the remedy available under 28 U.S.C. § 1581(c) manifestly inadequate.” Id. The Court noted that Plaintiff asserted, but offered no support for its position, that Commerce acted in bad faith and that “the rejection of its questionnaire responses was pretextual.” Id. at 11. As such, the Court granted Defendant’s motion and the dismissed the case. Id. at 13.

Slip Op. 21-34

Before the Court in United States v. Greenlight Organic, Inc. and Parambir Singh Aulakh., Court No. 17-00031, Slip Op. 21-34 (March 30, 2021) were three discovery motions a 19 U.S.C. § 1592 case for alleged “misclassified and undervalued entries” of “imported wearing apparel”. Id. at 2. Defendants had three motions before the Court: (1) a Motion for Protective Order from attending in person depositions due to the ongoing pandemic; (2) an Expedited Motion for an Order Compelling Plaintiff for Production of a Properly Produced Privilege Log; and a Complete Production Response; and (3) a Motion to Amend the Scheduling Order. Id. at 2-3. “Plaintiff opposed all three motions.” Id. at 4. For the following reasons, the Court granted Defendant’s Motion for a Protective Order, granted in part and denied in part Defendants’ motion to compel, and granted in part Defendants’ Motion to Amend the Scheduling Order.

“Courts have broad discretion in deciding discovery matters.” Id. at 4. Court “Rule 26(c)(1) stipulates that the court may ‘issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense’” during discovery proceedings. Id. at 6. “The moving party must confer with the other affected parties to resolve the dispute and show good cause for a protective order.” Id. at 6. “USCIT Rule 36(a)(3) provides broad discretion to the court to manage its docket and issue scheduling orders accordingly.” Id. at 15. In this case, the Court granted Defendants’ Motion for Protective Order and concluded that “prioritizing in-person depositions over potential health risks would pose an undue burden on the witnesses during the COVID-19 pandemic.” Id. at 7. The Court explained that it would “not compel the witnesses to travel and undertake health risks against their will to appear in person for depositions, particularly when videoconference court proceedings have become second nature in this Court over the past year during the COVID-19 pandemic” Id. at 8.

During the March 2021 Status Conference, the “Government clarified that it had mistakenly identified documents cited as “as privileged; therefore, Defendants withdrew their request for an updated privilege log. The Court denied in part Defendants’ Motion to Compel regarding government instructive manuals because the Court would “not compel Plaintiff to produce documents that counsel has explained do not exist.” Id. at 11. “The Court denied in part Defendants’ Motion to Compel regarding documents related to customs brokers because It found that “approximately 3,100 pages of responsive documents is not too burdensome for Defendants’ law firm to review without further assistance from the Government.” Id. at 13. The Court granted the Motion to Compel in part with respect to “native format documents because Plaintiff clarified that a technological error caused documents marked as “native format” to be illegible, and Plaintiff offered to cure the problem. Id. at 14. In addition, the Court granted Defendants’ Motion to Amend Scheduling Order in part, specifically granting an “extension of approximately two and a half months for additional discovery.” Id. at 15.